Bob Estes

National Labor Relations Board - Board Decisions

Feb 2, 1976

222 N.L.R.B. 695 (N.L.R.B. 1976)

BOB ESTES , A CORPORATION 695
Bob Estes , a Corporation and Houston McNamara,
Eugene R. Gladu, Adrion L. Osborne, and Robert
B. Roberts. Cases 31-CA-4840, 31-CA-4970,
31-CA-5121, and 31-CA-5329
February 2, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On October 29, 1975, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, General Counsel," Respon-
dent, and Charging Party Gladu filed exceptions and
General Counsel and Respondent filed supporting
briefs.
'Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as -amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions, except as modified below, of the Ad-
ministrative Law Judge and to adopt his recom-
mended Order.
We find merit in General Counsel's ,exception- to
the Administrative Law Judge's finding that Respon-
dent discharged Charging Party McNamara on Oc-
tober 18, 1974, rather than October 22, 1974, as Gen-
eral Counsel alleges.
Robert S. ' Estes, the president of Respondent, is
involved in two business enterprises. He is-president
of ' Bob Estes Corporation (herein Respondent) which
operates Lincoln-Mercury and Subaru automobile
dealerships; he is also sole owner of Estes Devel-
opment Company (herein Development Company), a
n®ncorporate enterprise which is engaged, inter alia,
in the upkeep and display of classic cars. In early
October 1974, Estes, 'in an effort to remove union
adherent McNamara from the bargaining unit so as
to prevent him from voting in the upcoming Novem-
ber representation election, informed McNamara
that owing to a business slowdown in-the service de-
partment of Respondent's Subaru dealership, Mc-
Namara, a Subaru mechanic, would be laid off in the
near future. However, at that time Estes did offer
McNamara a chance to transfer to his Development
"Charging Party Gladu has excepted to certain credibility findings made
by the Administrative Law Judge Ibis the Board's established policy not to
overrule an Adaunistrative Law Judge's resolutions with respect to credibili-
ty 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 (CA 3, 1951). We have carefully
examined the record and find'no basis for reversing his findings.
Company to work on classic cars. McNamara ex-
pressed a desire to work on classic cars, but not if he
had to transfer'to the Development Company in the
process. In the ensuing several days, while McNam-
ara continued working for Respondent, Estes ap-
proached him on numerous occasions and renewed
his offer to transfer him-to the Development Compa-
ny. Each time, McNamara refused. Finally, on Octo-
ber 22, Estes confronted McNamara with the choice
of either working on classic cars as an employee of
the Development Company or immediately turning
in his uniform and leaving the premises. When Mc-
Namara asked one more time if he could remain with
Respondent while working on classic cars, Estes in-
formed him that he had already been "transferred to
the Development Company as of October 18, and
since then had been "on loan" to Respondent to per-
form last-minute Subaru repair work. McNamara
then told him he would quit rather than transfer to
the Development Company, whereupon Estes in-
structed McNamara to see his supervisor, Service
Manager de la Cuadra who would handle the admin-
istrative aspects of his termination.
We agree with General --Counsel that the effective
date of McNamara's unlawful discharge from the
employment of Respondent was October 22, 1974,
not October 18 when he was administratively trans-
ferred to,the payroll of the Development Company.
That McNamara was an employee of Respondent
until October 22, is clearly borne out by the record.
Respondent itself admitted in paragraph VIII of its
Answer to Consolidated Amended Complaint that
McNamara "was technically terminated on October
22, 1974, from respondent but was offered other em-
ployment with another company owned by Respon-
dent or Respondent's president." (Emphasis sup-
plied.) Furthermore, during the hearing, Estes
testified on direct examination that on October 22,
he offered McNamara - the same pay on the same
premises, "and the only difference would be that you
will be working for me and will receive your paychecks
through Estes Development Company." (Emphasis
supplied.) We also note that between October 18 and
22, McNamara performed the same unit work for
Respondent as he had done in the past. He contin-
ued to wear the same mechanic's uniforms as other
Respondent employees and continued working on
the same premises. Finally, at, the end of the October
22 conversation, Estes instructed McNamara to talk
to Bruce de la Cuadra, Respondent's service manag-
er and McNamara's supervisor, so as to work out the
administrative details of McNamara's separation. To
the extent Estes may have administratively "transfer-
red" McNamara to the Development Company as of
October 18, and then "loaned" him back to the Re-
222 NLRB No. 111
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to do unit work, we regard this as a paper
transaction, a "transfer" in name only. All available
evidence , the pleadings , the conduct of the parties,
and Estes ' own testimony , convinces us that in reality
McNamara continued in the employment of Respon-
dent until October 22 , at which time he was dis-
charged by Respondent because of his Union activi-
ties.
THE REMEDY
Respondent shall be ordered to cease and desist
from engaging in the unfair labor practices found
herein and take certain affirmative action as provid-
ed in the Order below, designed to effectuate the pol-
icies of the Act.
It having been found that Houston McNamara
was unlawfully discharged on October 22, 1974, Re-
spondent will be ordered to offer him immediate and
full reinstatement to his former job, or, if his job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges. Respondent will further be ordered to
reimburse him for any loss of pay he may have suf-
fered as a result of its discriminatory action against
him in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, 291-293 (1950), together
with 6-percent interest thereon in accordance with
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).2
It will be further recommended that Respondent
be required to expunge from Eugene Gladu's person-
nel records the written warning notice it issued to
him on October 3, 1974.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 4
in the Administrative Law Judge's Decision:
"4. Respondent violated Section 8(a)(3) and (1) of
the Act on October 22, 1974, by discharging Houston
McNamara."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Bob
Estes, a Corporation, Inglewood, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order.
2 Having found that McNamara was not transferred to the Development
Company on October 18, but remained in Respondent's employment until
his unlawful discharge on October 22, we, unlike the Administrative Law
Judge, see no reason why the failure to make Estes Development Company
a party to this proceeding should be considered during the compliance stage
in this case , as to its effect on backpay due to McNamara. Respondent's
backpay liability runs from October 22, 1974, the date it unlawfully dis-
charged McNamara in violation of Sec. 8(a)(3) of the Act.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based on a
charge filed in Case 31-CA-4840 on October 29, 1974, by
Houston McNamara, a charge filed in Case 31-CA-4970
on December 30, 1974, by Eugene R. Gladu, and an Order
consolidating said cases, a consolidated complaint herein
was issued on January 24, 1975. Said complaint alleges that
Bob Estes, a Corporation,' hereinafter referred to as the
Respondent or the Company, violated Section 8(a)(1) and
(3) of the Act. Respondent, by its answer, denies that it
engaged in conduct violative of the Act as alleged.
Pursuant to notice, a hearing was held in Los Angeles,
California, on February 20 and 21, 1975. Appearances
were entered on behalf of General Counsel and Respon-
dent. Briefs with respect to the aforementioned two cases
were filed by said parties which have been fully considered.
Based on a charge filed by Adnon L. Osborne, an indi-
vidual, in Case 31-CA-5121 on March 5, 1975, as amended
on April 7, 1975, a complaint was issued on April 28, 1975.
Said complaint alleges that the Respondent violated Sec-
tion 8(a)(4) and (1) of the Act. By its answer, Respondent
denies that it engaged in the unfair labor practices alleged
therein. By motion dated May 7, 1975, General Counsel
moved to reopen the record in Cases 31-CA-4840 and
31-CA-4970 and consolidate with said cases for hearing
Case 31-CA-5121. On May 15, 1975, I issued an order
granting said motion.
Based on a charge filed by Robert B. Roberts, an indi-
vidual, in Case 31-CA-5329, on May 29, 1975, a complaint
was issued on July 10, 1975. Said complaint alleges that
Respondent violated Section 8(a)(4), (3), and (1) of the Act.
By its answer, Respondent denies that it engaged in the
unfair labor practices alleged therein. By motion dated
July 17, 1975, General Counsel again filed a motion to
reopen the record in Cases 31-CA-4840 and 31-CA-4970
to further consolidate for hearing with said cases Case
3l-CA-5329. By an order issued on July 29, 1975, I grant-
ed such motion.
Pursuant to notice, a hearing was held in Los Angeles,
California, on August 5, 1975, for the purpose of taking
evidence relating to Cases 31-CA-5121 and 31-CA-5329.
At the start of the hearing, however, General Counsel pre-
sented a withdrawal request from Osborne and moved to
dismiss the complaint in Case 31-CA-5121. The request to
withdraw the charge in said case and the motion to dismiss
the complaint therein was granted. Therefore, this decision
relates only to Cases 31-CA-4840, 4970, and 5329.
Supplemental briefs were filed by the General Counsel
and Respondent which have been fully considered.
i "A Corporation" is added to the title to clarify that Respondent is a
corporation, not an individual.
BOB ESTES , A CORPORATION
Based on the entire record 2 in this proceeding and my
observations of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is now, and at all times material has been, a
California corporation with its offices and principal place
of business located at Inglewood , California, where it is
engaged in the retail sale and service of automobiles. Re-
spondent, in the normal course and conduct of its business
operations, annually derives gross revenues in excess of
$500,000 and annually purchases and receives goods val-
ued in excess of $50 ,000 directly from suppliers located
outside the State of California.
As is admitted by the Respondent , it is now, and has
been at all times material herein , an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America-UAW, herein called the Union, is
now, and at all times material has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Information
Based on stipulation of the parties received as an exhibit
at the start of the hearing, it is found as follows:
1. On September 16, 1974, Respondent received a letter
dated September 13, 1974, from the International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America-UAW, herein called the Union,
claiming that a majority of Respondent's employees in an
appropriate bargaining unit consisting of all service me-
chanic personnel and all service-related personnel had des-
ignated the Union as their exclusive representative for col-
lective-bargaining purposes and requesting recognition and
bargaining.
2. On or about September 20 or 23, 1974, Respondent
received a notice of filing of petition in Case 31-RC-2954
which contained as an enclosure a copy of the petition filed
in that case on September 19, 1974.
3. On September 23, 1974, Respondent received a letter
dated September 20, 1974, from the Union naming three
employees of Respondent as "Volunteer Organizers" for
the Union; namely, Robert B. Roberts, Eugene Gladu, and
James Lunsford.
4. On October 8. 1974, Respondent received from the
Union a letter dated October 7, 1974, objecting to
Respondent's having issued a warning notice to Eugene
Gladu, dated October 3, 1974.
2 Certain errors in the transcript are hereby noted and corrected.
697
5. On October 18, 1974, Respondent and the Union en-
tered into a Stipulation for Certification Upon Consent
Election in Case 31-RC-2954 for an election to be held on
November 14, 1974. The stipulation, which was approved
by the Regional Director on October 18, 1974, provided,
among other things, that the payroll period ending October
21, 1974, would be the payroll period for eligibility and
that among the classifications in the appropriate bargain-
ing unit would be "All mechanics and helpers ... new car
get ready men, used car mechanics and helpers...."
6. On November 14, 1974, a Board-conducted election
was held pursuant to the Stipulation for Certification Upon
Consent Election, and the Union lost .3
7. In or about the month of November 1974, Respon-
dent made a statement to the California Employment De-
velopment Department, in opposing a claim for unemploy-
ment insurance by Houston McNamara, essentially as
follows:
Due to lack of work McNamara was given the alter-
native which was working on automobiles for another
company of Mr. Estes on the same premises at the
same salary-it was Mr. McNamara's decision to re-
sign.
8. By letter of October 8, 1974, from Respondent's attor-
ney to the Union, in response to the Union's letter of Octo-
ber 7 mentioned in paragraph 4 above, Respondent denied
any effort to coerce and intimidate employees generally or
Mr. Gladu in particular in their rights under the National
Labor Relations Act, as amended, and stated that Mr. Gla-
du had violated established company rules and had been
warned that such violations would not be tolerated in the
future.
B. The Issues
Set forth hereinbelow in chronological order are the alle-
gations in the complaints of the unfair labor practices of
Respondent.
1. On or about September 15, 1974, Respondent in-
creased employees' wage rates to dissuade them from sup-
porting the Union. It appears, however, that the record will
not support this allegation,4 and, in his brief, the General
Counsel concedes that dismissal of this allegation is war-
ranted. Consequently, it is concluded that General Counsel
has failed to prove by a preponderance of the evidence this
allegation and in the recommended Order hereinbelow it
will, therefore, be dismissed.
2. Although it is alleged to have occurred on September
10, 1974, it appears from the record that the testimony
relating to this allegation is with respect to an incident
which occurred on or about September 19. The allegation
is that Respondent, by Robert Estes, owner and president
of Respondent, violated Section 8(a)(1) of the Act by inter-
rogating an employee regarding his union sympathies and
activities and those of other employees.
3 The tally was 26 votes against the Union and 10 votes for the Union
Further, it appears no objections were filed to the conduct of the election
and the results were certified by the Board.
4It Is found that said wage increases were put into effect before Respon-
dent had any knowledge of union activity.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. On or about October 3, 1974, Respondent gave a writ-
ten warning to an employee because of his union activities.
4. During the month of October .1974, Respondent, by
Bruce de la Cuadra, Respondent's service manager and an
admitted supervisor, violated Section 8(a)(1) of the Act by
interrogating an employee about his union activities and
those of other employees.
5. At various times between mid-October to mid-No-
vember 1974 Respondent violated Section 8(a)(1) of the
Act by soliciting grievances from employees and promising
them benefits to restrain them from supporting the Union.
6. On or about October 18, 1974, Respondent in viola-
tion of Section 8(a)(3) and (1) of the Act transferred em-
ployee Houston McNamara to another company owned by
Estes.
7. On or about October 22, 1974, Respondent in viola-
tion of Section 8(a)(3) and (1) of the Act discharged Mc-
Namara.
8. On or about December 26, 1974, Respondent, in vio-
lation of Section 8(a)(3) and (1) of the Act, discharged Eu-
gene Gladu.
9. On or about December 1, 1974, and again on or about
December 31, 1974, Respondent, through Uwe Nissen,
Respondent's dispatcher and shop foreman who is admit-
tedly a supervisor, unlawfully interrogated Robert Roberts
concerning his union sympathies and activities.
10. On or about December 31, 1974, Respondent,
through Nissen, violated Section 8(a)(1) of the Act by, soli-
citing Roberts to abandon his union activities and beliefs.
11. On or about January, 2, 1975, Respondent through
Nissen violated Section 8(a)(1) of the Act by threatening to
discharge Roberts and to prevent him from obtaining other
employment unless he abandoned his union activities and
beliefs.
12. On or about February 21, 1975, Respondent,
through Nissen, violated Section 8(a)(1) of the Act by ad-
vising Roberts that he would not be allowed to .return to
work without first securing a doctor's certificate.
13. On or about February 24, 1975, Respondent,
through Nissen, violated Section 8(a)(1) of the Act by curs-
ing and threatening Roberts regarding his testimony as a
witness in the earlier hearing in this proceeding.
14. Between the period of February 24, 1975, through
approximately March 3, 1975, Respondent, through Nis-
sen, violated Section 8(a)(4), (3) and (1) of the Act by refus-
ing to assign work to Roberts.
15. On or about May 19, 1975, Respondent violated
Section 8(a)(4), (3) and (1) of the Act by constructively
discharging Roberts.
As previously stated, Respondent, by its answer, denies
the allegations of unlawful conduct hereinabove set forth.
C. Resolution of the Issues
The following is a study of the testimony'relating to the
above outlined allegations and a resolution of the issues
involved.
Re 1: As stated hereinabove, this allegation has not been
sustained.
Re 2: Lunsford credibly testifed that there was a meet-
ing with a union representative on September 18 and that
on the following day 10 to 15 employees started wearing
union buttons including Gladu, Roberts, McNamara, and
himself.
Gladu testified that Estes approached him at his work
place and saw that he was wearing a button. It appears that
this occurred on or about September 19. His testimony as
to what then occurred is as follows-,
Mr. Estes come to me,and shake the union button and
says, "Why do you do this to me?"
I says, "Mr. Estes, that's for the benefits, your deal-
ership and the employees in general."
He says, "How many of you guys carried that but-
ton?"
I says, "Mr. Estes, go find out yourself."
Then after that Mr. Estes says, "If you want a war,
I give you a war, pig."
I says, "Mr. Estes, I am not a pig. I am the same
man before I was carrying the button: '
Before he left, he says, "I hope you win the war. If
you are not, your days, are counted."
Estes, in testifying about the incident, denied that he
shook Gladu's button, that he threatened Gladu with war,
or that he called him a pig. His testimony as to what oc-
curred is as follows:
I walked up to Mr. Gladu in the shop one morning
when I suddenly saw union buttons around and I
pointed to the button and I said, "Gene, what is this?"
He said, "Don't you know what it is?"
I said, `I am looking at it." I just pointed to it and I
was shocked, somewhat set back to see this and asked
him what it was all about and he proceeded to tell me
that this was the thing the shop-needed and it was the
best thing as far as he was concerned; that everybody
go union and I just shook my head and at that point
told him I felt he was mistaken and walked away.
There is no indication why, of the various employees
who were wearing union buttons, Estes would have singled
out only Gladu to threaten about-wearing the union but-
ton. Of the two witnesses as to the incident, Estes was the
more convincing and, therefore, his version of what oc-
curred is credited 5 Even though the allegation contains no
reference to threats by Estes, the matter was fully litigated
and, therefore, it appears appropriate to make a finding
also with respect thereto. Based on the credited testimony,
it is found that the General Counsel has failed to prove by
a preponderance of the evidence that on or about October
19, 1974, the Respondent, through the conduct- of Estes,
unlawfully threatened or unlawfully interrogated Gladu.
Re 3. On October 3, Respondent issued a written notice
to Gladu signed by de in Cuadra warning him that he
would be subject to discharge or disciplinary action if he
did not adhere to established working hours and that any
5 It is noted that the allegation with respect to the incident does not refer
to any threat 'but only to interrogation and the only bit of interrogation to
which Gladu testified was the question of "how many of you guys carried
that button " Even if that testimony were credited, it does not appear that
the question could be considered coercive since it was with respect to overt
actions of the other employees which Estes was able to readily observe for
himself
BOB ESTES , A CORPORATION
time off must be authorized by himself (de la Cuadra) 24
hours in advance . Gladu credibly testified that he had sus-
tained a back injury on the job a couple of years prior
thereto and that he occasionally left work early for medical
treatment for it, but that he always received permission
from de la Cuadra or Nissen before leaving.
De la Cuadra testified as follows as to the reason for
giving him the warning notice:
The warning notice was because he had a bad habit
of telling me , "I am going to be leaving in an hour or
two for the doctor." This got a little old.
I told him, "I would like to know in advance when
you are going to be leaving , because we load the
-shop."
By .loading the shop , we take a certain amount of
jobs and we have - to get them out that evening and if I
did not know in• the morning ahead of time I would
not be able to advise my service adviser. They will
write up service and here is a man telling me he has to
go.
I told him verbally two or three times and evidently
it didn't sink in, so , l thought it would be necessary for
me to spell it out, which I did.
Gladu testified' without contradiction , and his testimony
is credited, that de la Cuadra gave him permission most of
the time and told him, "I don't have to give you all the
permission . Just go to the dispatch office. Soon the dis-
patch officer know you are clear, they will let you, go." He
also credibly testified that he never left without permission.
He further testified that in the . 6 years that he worked for
Respondent , he did not observe or hear of any other em-
ployee receiving a written warning notice.
Respondent did not introduce any testimony that it did,
in fact, follow the practice of issuing written warning no-
tices. In view of the timing of the written warning notice,
approximately 2 weeks after Respondent had received a
letter from the Union notifying ' Respondent that Gladu
was one of the three employees who would act as "volun-
teer organizers" for the Union , and the long practice of
permitting Gladu to leave early by getting permission from
de la Cuadra or the dispatcher and the failure of Respon-
dent to show that he in fact left early without permission or
that some incident occurred which precipitated the warn-
ing notice , it is concluded that the written warning notice
(altering the long practice with regard to Gladu's leaving
early) was motivated by Gladu 's union activity and, conse-
quently, it is found that it was violative of Section 8(a)(1)
of the Act . De la Cuadra 's testimony as to the reason he
had to have 24 hours notice is not persuasive inasmuch as
it appears that Gladu received permission before leaving
and it is inferred that it was granted because Gladu was
not needed.
Re 4: This allegation of unlawful interrogation relates to
a conversation between de la Cuadra and Osborne. Os-
borne started to work as an apprentice mechanic in
Respondent 's Subaru service department, also referred to
as the "corner store" 6 on October 9, 1974 . On direct exam-
699
mation; Osborne testified that the conversation occurred
after he was employed about a week or two and before
McNamara left Respondent 's employ. McNamara left
Respondent 's employ on or about October 22, therefore,
the conversation must have occurred in mid -October 1974.
Osborne testified as follows to the conversation:
He asked me if I knew about the union . I said,
"Yes."
He asked if anybody in the Subaru department had
spoken to me about the union.
I said, "Yes ." I told him who; that Mack had spo-
ken to me a little bit about the union . That's pretty
much that I remember about it.
Subsequently , Osborne identified "Mack" as McNamara
and he further testified that he told de la Cuadra that Rob-
erts had also spoken to him about the Union . He also testi-
fied that he told him his own thoughts about the Union to
the effect that he "really didn't care too much for it" and
that he was "undecided." On cross-examination, he testi-
fied that de la Cuadra did not ask him how he felt about
the Union but that he volunteered the information as to
how he felt about the Union. He further testified that while
he was asked if anyone had talked to him about the Union,
de la Cuadra did not ask him who they were , but that he
volunteered the information as to their identity.
De la Cuadra testified that Osborne came to his office to
talk about going to the Subaru school and that he made a
statement to Osborne that "it looks like everybody wants
the Union," whereupon Osborne volunteered the informa-
tion as to "who was involved, who approached him and
everything." De la Cuadra denied that he asked him the
question of whether he knew about the Union or the ques-
tion of whether anyone had talked to him about the Union.
Osborne was the more convincing witness as to this inci-
dent and moreover it appears unlikely that he would have
volunteered all the information he gave de la Cuadra in
response to merely a casual remark that "it looks like ev-
erybody wants the Union." Based on Osborne 's'credited
testimony it is found that Respondent violated Section
8(a)(1) of the Act by de la Cuadra's unlawful interrogation
as to whether anyone had talked to him about the Union
which clearly indicated that he was seeking information
about his and his fellow employees' union activities.
Re 5: It appears from credited testimony Estes held two
meetings with the approximately 40 employees in the bar-
gaining unit sought by the Union, the first on October 15
and the other a few days before the election on November
14. Lunsford credibly testified as to what Estes stated at
the first meeting as follows:
I don't recall the exact words, but in essence it was
he was saying that we have been trying to organize the
shop and he did not feel that we needed a union in the
shop ; that he, Mr. Estes, could handle any problems
that we might have there in the shop.
*
6 ly serviced It appears that an overflow in the latter part of'the shop was
This service department is located in a different area of Respondent's handled in the corner store area and that after the Subaru service was
premises from that where the Lincoln-Mercury and larger cars were normal - dropped , it handled the lighter work on the bigger cars.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS: He said he could handle any problems
that came up. He has an open door policy. If we have
any gripes or complaints, come to him with them and
he will take care of them, but he didn't need the union.
Roberts also testified as to Estes' statements and his tes-
timony essentially corroborated that of Lunsford. Roberts
further testified that prior to the meeting he had brought to
Estes' attention that some of the equipment needed repair
and that Estes asked him to make a list of the equipment
that needed repair, that at the meeting Estes told the em-
ployees that he had learned that some of the equipment
needed repair and had asked Roberts to make a list for
him, and that he presented it to Estes at the meeting. Rob-
erts testified in addition that several days after the meeting
Estes asked him if the equipment that had been repaired
was functioning properly and he told Estes that it was.
It appears also that at the first meeting that one of the
employees complained that the insurance program was not
paying for some surgery he had and another employee
complained about a claim he had that was not paid and
Estes told Marie Langdon, Respondent's controller who
was at the meeting, to look into the matter.
Roberts further testified without contradiction, and his
testimony is credited, that, when Estes asked him if the
equipment had been repaired, he also asked him if he knew
of anyone else who was having difficulty with the insur-
ance or any problem at all and stated that, if he did, that
his (Estes') door was open to discuss these matters.
Roberts testified as follows to the second meeting:
It appeared to me that Mr. Estes read from a state-
ment, a piece of paper.
He stated that-I believe he gave the date of the
election, that there was going to be an election and
although we had filled out authorization cards for the
UAW, that we didn't have to vote for the UAW and
we could vote No and we should vote No.
They felt that-again, I think he stated that unions
only wanted our money; they didn't want to do any-
thing for us other than get our money. That was the
feeling I got.
At this particular meeting there wasn't any conver-
sation allowed between the audience and Mr. Estes.
I'think Mr. Fredericks stated that there would be no
reprisals because of the election and the union activi-
ty.
Both Lunsford and Roberts testified without contradic-
tion , and their testimony is credited, that before the union
organizing campaign that neither Estes nor de la Cuadra
had ever solicited complaints from them or talked to other
employees in their presence about complaints . Respondent
offered no evidence of previous solicitations.
The Board stated in ITT Telecommunications, a Division
of International Telephone and Telegraph Corporation, 183
NLRB 1129 (1970):
The solicitation of employee grievances by an em-
ployer is not illegal unless accompanied by an express
or implied promise of benefits specifically aimed at
interfering with, restraining , and coercing employees
in their organizational effort.
It appears from the above testimony which is credited that
not only did Estes solicit employee grievances but by his
statements impliedly promised redress of grievances with
respect to terms and conditions of their employment aimed
at interfering with, restraining, and coercing them in their
organizational efforts? Consequently, it is concluded that
the General Counsel has proved by a preponderance of the
evidence that Respondent violated Section 8(a)(1) of the
Act in mid-October by soliciting grievances from employ-
ees and imphedly promising them redress thereof to re-
strain them from supporting the Union.
Re 6 and 7: McNamara commenced working for Re-
spondent in November 1973 as a mechanic in the Lincoln-
Mercury service department and was transferred to the Su-
baru service department (or "corner store") on May 1,
1974, after having attended Subaru school in March or
April 1974 and obtaining a certificate from said school.
He worked in the Subaru service department with only
one other mechanic until Osborne was hired on October 9.
Occasionally, at Estes' request McNamara worked on clas-
sic cars (also referred to throughout the proceeding as an-
tique cars), a collection of which was owned by Estes under
the trade name of Estes Development Company. Said com-
pany is also involved in various ventures including land
development and it is a sole proprietorship.
McNamara was paid at an hourly rate and not on a
commission basis. It is noted that McNamara was one of
those who wore a union button on his shirt pocket and that
Osborne told de la Cuadra that McNamara was one of the
two employees who had spoken to him about the Union. It
appears that Estes Development Company had two em-
ployees, one full time and one part time, and that the full-
time employee was James Cowan (sometimes referred to in
the transcript as Collins) who died in September 1974. It
also appears that various employees of Respondent other
than McNamara also occasionally worked on the classic
cars at Estes' request and were also paid for their work by
checks from Respondent. It further appears that on Octo-
ber 1 I Estes talked with McNamara and told him Cowan
had died and that he wanted McNamara to work on the
classic cars and he would be transferred to the Estes Devel-
opment Company. McNamara told him that they were
busy in the Subaru service department, that he preferred
staying, that he would work on the classic cars, if he could
stay with the Respondent, and that Estes replied that he
would have to transfer to the Development Company.
Estes' testimony as to their conversation is not inconsistent
with the testimony of McNamara. Estes, however, further
testified that he told McNamara that the Subaru operation
was losing money and that he was going to have to make
7 It is clear from the credited testimony of Estes ' statement at the first
meeting that he was attempting to persuade employees that they did not
need the Union to protect their interests and implied that they could obtain
corrections of their problems or redress of their grievances through him,
Estes, and that they did not need the aid of the Union to accomplish this.
This was followed by a solicitation of Roberts to refer any employee who
had any problem to Estes . In reaching the above conclusion , I do not rely
on the repairing of equipment which was instigated by Roberts or on Estes'
instructions to Langdon to look into the failure of the insurance company to
pay employees' claims Also, it does not appear that Respondent violated
the Act by any statement Estes made at the second meeting.
BOB ESTES , A CORPORATION
some reduction in force, that he did not want to let Mc-
Namara go because of his ability as a mechanic, and that
he would have the same wages and fringe benefits after
transferring to the Development Company as he had with
Respondent. In addition, Estes testified that he told Mc-
Namara that if he would not accept the transfer, he would
have to let him go because of the economic conditions in
the Subaru department. According to McNamara's cred-
ited testimony, he told Estes on October 14 that he had
thought it over and that he did not want to "change com-
panies."
It appears that at the first meeting of employees (dis-
cussed hereinabove) on October 15, Roberts stated to Estes
that McNamara felt that he was being pulled out of the
Subaru department because of his union activities which
Estes denied and stated that he needed McNamara to work
on the classic cars because of Cowan's death. McNamara
credibly testified that he told Estes that he did not want to
change companies because then he would not have a
chance to vote (in the union election) and Estes replied
that "that is right."
McNamara continued to work in the Subaru service de-
partment on Respondent's jobs and on the morning of Oc-
tober 22, while he was working in said department, Estes
approached him and asked him if they were getting caught
up, to which McNamara replied that there was still work to
do in the department. Estes indicated that he needed Mc-
Namara to move some of the classic cars and McNamara
asked him if he had arranged it so he could work on the
classic cars and stay with Respondent. Estes replied that he
had not and that, as a matter of fact, he (McNamara) had
been transferred several days before to the Development
Company and "was on loan to the Subaru Department to
help them get caught up." According to McNamara's testi-
mony the conversation then continued as follows:
I said, "Don't you think that's awful unfair?"
He said, "I don't care what you think. You will do
as I say or else you won't be working anywhere."
I said, "You mean that if I don't accept working on
the antique cars that I won't be able to, get a job any-
where?"
He said, "Not if I have anything to say about it, you
won't."
Then he says, "I am telling you, either you work on
the antique cars or turn in your uniforms. It is as sim-
ple as that."
Also, according to McNamara's testimony, he had a
subsequent conversation a couple of hours later with Estes.
His testimony as to that conversation is as follows:
Mr. Estes and Mr. de la Cuadra come in the door
and Mr. Estes called out to me and said, "Mack,
Bruce tells me you are not going to work on these
antique cars; is that right?"
And I said, "Yes, sir."
Then he says, "Well, that's it, then. You might as
well turn in your uniforms." He asked me about my
uniforms, whether I had them all there and I said,
"No. I have one on and some in the car."
He said for me to go home and change out of the
701
uniform and bring my uniforms back in.
I asked what about my check. Mr. de la Cuadra
said, "Bring your uniforms in and we will give you
your check."
Estes testified with respect to the second conversation on
October 22. His testimony as to that conversation is as
follows:
And he said to me, "I told you that I was willing to
do this work, but that I wanted to stay on the Estes
payroll, Bob Estes."
I told him again that this was impossible and told
him the reason why it was impossible and he said,
"Well, f am not going to do it any other way. I am
going to do it the way I am saying or I won't do it."
I believe Mr. de la Cuadra was there at this time. I
said, "You mean to tell me you are saying that you
want to quit your job?"
He said, "Well, I guess that's the way you would put
it then, because I am not going to do the other."
I said, "I am offering you the same pay working
here on the same premises and under my personal di-
rection and the only difference would be that you will
be working for me and will receive your paycheck
through Estes Development Company."
He said, "What do I need to do then if I am going
to leave?"
I said, "You will have to talk to Mr. de la Cuadra
about that."
The question came up about uniforms because
when somebody is terminated, when they leave they
turn their uniforms in.
I said, "You have your uniforms?"
He said he had one or two of them there and the
other one was at home and this conversation, as I re-
call, was around 1:30 in the afternoon.
I said, "Why don't you take your"-"Go over-
back to your home and get the uniform then and bring
it and check out and when you have checked out you
will receive your paycheck and we will dust consider
it"-He said, "When will it terminate?"
I said, "I will terminate as of today."
It appears that the check which McNamara received was
drawn on the Estes Development Company and was not a
check from Respondent.
According to the complaint, it is alleged that McNamara
was unlawfully "transferred" on or about October 18 and
discriminatorily "discharged"' on October 22. It appears
rather that, since he was dropped from Respondent's pay-
roll on or about October 18, he was discharged by Respon-
dent on that date. His employment by Respondent ceased
as of that date and thereafter until October 22 he was on
the payroll of the Development Company. The issue, there-
fore, is whether or not dropping McNamara from the em
ploy of Respondent on or about October 18 constituted a
discriminatory discharge.
It is obvious from the testimony of both Estes and Mc-
Namara that McNamara insisted on remaining on the pay-
roll of Respondent and that on October 22 he, in effect,
refused to accept the transfer to the employ of the Devel-
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opment Company s Although, according to McNamara's
testimony, Estes threatened to blacklist McNamara, there
is no allegation to that effect and it cannot be said that the
matter was fully litigated, therefore, no findings will be
made with respect to the issue of whether or not he was so
threatened.
It is inferred that McNamara was removed from
Respondent's payroll on or about October 18 and transfer-
red to the payroll of the Development Company in order to
remove a known union adherent from the bargaining unit.
As disclosed hereinabove, Respondent had knowledge of
his union adherence and activity and the reasons advanced
by Respondent for transferring McNamara are not persua-
sive. According to Estes' testimony, it was necessary for
him to cut down Respondent's overhead and, therefore, he
had to reduce the work force in the Subaru service depart-
ment . However, it is noted that just 2 days before Estes
told McNamara that he wanted' him to transfer to the De-
velopment Company, Respondent hired Osborne to work
in that very department. According to his testimony, Estes
needed McNamara to work on the classic cars, and by
transferring McNamara to the Development Company's
payroll he could effect a saving in Respondent's overhead.
(It is noted that Estes also testified that when Respondent's
employees worked on the classic cars, the Development
Company reimbursed the Respondent for their services.)
Both of Estes' above stated objectives could have been ob-
tained by keeping McNamara on Respondent's payroll
and reimbursing Respondent for that portion of Mc-
Namara's time in which he worked on classic cars. (It is
noted that the reverse procedure was followed, that while
McNamara was on the Development Company's payroll,
he was working on Respondent's cars and was paid by the
Development Company, and it is assumed that the Devel-
opment Company was reimbursed by Respondent for the
period he was working on Respondent's cars.) Thus, a
change in McNamara's employment was not necessary to
accomplish the effects which Estes claimed he was at-
tempting to achieve. Furthermore, Estes advanced another
unpersuasive reason for the transfer, that McNamara's
work was not satisfactory in the Subaru service depart-
ment, but that he was an excellent mechanic on conven-
tional cars. This reason is not convincing . It is noted that
McNamara had attended Subaru school and received a
certificate from said school, and there is no credible evi-
dence that his work was unsatisfactory. Moreover, Os-
borne, the mechanic who was employed on October 9, had
not had Subaru training. It is inferred that, while Estes
could very well have used the services of McNamara, ap-
parently an excellent mechanic,' on his classic cars, that
reason was merely,a pretext for removing him from the
employ of Respondent and thereby taking him out of the
bargaining unit.
All the above facts coupled with the timing of the action
during the organizational campaign and prior, to the elec-
tion leads me to the conclusion that the transfer of Mc-
8 This position taken by McNamara does not affect the issue as to his
discharge, but may be considered during the compliance stage in this case as
to its effect, if any, on the matter of backpay due to him under the make-
whole remedy recommended herembelow.- -
Namara from, the employ of Respondent to the employ of
the Development Company constituted a discriminatory
discharge of McNamara on October, 18, 1974, in violation
of Section 8(a)(3), and (1) of the- Act .9 Although it appears
to be Respondent's position that,Estes had to find a re-
placement for Cowan, there is no showing that after Mc-
Namara refused. to work in the employ of the Development
Company, the Development Company obtained another
replacement for Cowan.
Re 8: Gladu was discharged toward the end of the day
(at or after 3 p.m.) on December 26, 1974. The General
Counsel contends that his discharge was discriminatorily
motivated, whereas Respondent claims that he was,dis-
charged for charging for work that he failed to perform.
In the morning of December 26, Gladu performed some
work on a Capri automobile which called for a "flat rate"
of 3.6 hours.1° It appears from the work records that ,the
job was checked out to him at 8:04 a.m. and checked in as
completed at 8:59 a.m. It further appears that the job in-
cluded changing an oil seal because of an oil leak. Nissen,
the shop foreman and dispatcher, credibly testified that the
seal is mounted between the engine and the transmission
and in order to change it, it is necessary to "pull the trans-
mission."
Nissen testified that when Gladu returned the work or-
der to him on the above-mentioned job (which indicated
that he had finished the job), he questioned, him as to
whether he had completed the job because he observed
that he had not even worked an hour on it and it was
impossible to do the job in that small amount of time.
Nissen testified as follows:
I looked at the ticket and I saw those operation
numbers and it was about 3.6 hours flagged and he
wasn't on more than an hour, not even,an hour and I
questioned this.
'I said, "Did you pull that transmission out in one
hour? That's impossible."
I saw his numbers written down and that is how it
started.
He admitted to me. He said, "No."
I said, "Why did you write it down?"
He answered me, "I have to make up some time."
I showed him the ticket. "Is this the way you want
it?"
He said, "Yes."
Nissen further testified that he proceeded to let the ticket
go through and reported the matter to de la Cuadra, the
service manager Nissen further testified that, in reporting
the matter to de la Cuadra, he told de la Cuadra that "I am
not going to okay it, [apparently referring to the repair
9 As to the ending of his employment by Estes Development Company on
October 22, it is noted that Estes was not made a party to this proceeding
either as an individual or as d/b/a Estes Development Company, and there
is no allegation that, in either capacity, he and Respondent are a single or
point employer. Therefore, no finding is made with respect to that point As
stated hereinabove, the effect thereof on the backpay appropriately due
under the make-whole Remedy is a matter that can be disposed of in the
compliance stage of this proceeding
10 A "flat rate" is the amount of time set as a standard by the factory for
doing the work involved and which establishes the amount of reimburse-
ment it will pay on its warranty
BOB ESTES , A CORPORATION
order] because it has not been performed." In addition,
Nissen testified that de la Cuadra said that he was going to
have the transmission pulled down and he wrote up anoth-
er repair order for the work to be done. The, second work
order was an "internal" work order which called for the
Respondent to absorb the payment to the mechanic for the
work rather than charging a customer or the factory on its
warranty.
The second work order then was given to another me-
chanic, Celestino Lopez. Lopez testified that he changed
the front oil seal, that in his opinion the transmission had
not been "pulled," and that it was the original factory seal
which he replaced.
George McKinney, who works in the parts department
for Respondent, testified that he had a conversation with
Gladu after Gladu's termination. McKinney testified that
he had been informed by Roberts that Gladu had been
fired and he asked Gladu if it were so, that Gladu said it
was true, that he then went to Nissen and asked him and
that Nissen informed him that Gladu had been discharged
for "flat rating" (a term which indicates charging for work
that had not been performed),, that he asked Nissen if he
were sure , and Nissen replied, "I am sure. He admitted it to
me," and that he had asked Gladu to change the ticket
which he refused to do. According to McKinney's further
testimony, he then approached Gladu and asked him about
the matter. McKinney's testimony as to their conversation
is as follows:
A. I said, "Gene, are you crazy?"
He said, "No."
I said, "What was the idea?"
He said, "Fuck it. I' have to get some money some
way." And that's the exact words he said to me and
Mr. Gene is right there.
I have a good memory, Gene.
Q. Did you have any conversation with him regard-
ing correcting it?
A. Yes. I said that to him.
Q. Tell us what you said and what he said.
A. I said, "Gene, Uwe [Nissen] tells me he gave you
the opportunity of changing the R.O. [apparently the
repair order]. Why don't you change the R.O.? You
have a good thing going here. Everything is working
okay. You have always earned good money. You have
a good job. Why throw it away?"
That's what he said. He had his hands in his pockets
and a jacket on and, "I am easy."
Gladu testified that he had performed the complete job
and had changed the seal and denied that he had any con-
versation with either de la Cuadra or McKinney.
The Respondent introduced into evidence the oil seal
which Lopez testified he had removed from the automobile
and the General Counsel introduced into evidence the oil
seal which Gladu testified that he had removed from the
automobile. Both General Counsel and Respondent
claimed that the respective oil seal each had introduced
into evidence was the seal that had been installed by the
factory. An examination of the seals affords me no basis
for determining which of the two was a factory-installed oil
seal and neither does the explanation offered as to why one
703
or the other should be recognized as the factory-installed
seal.
Gladu testified that the reason he happened to have the
original oil seal was that when he finished the job, he threw
it on his toolbox and he did not turn it in to the parts
department (which apparently he was supposed to do be-
cause it was a warranty job and the factory requires the
replaced parts to be produced in order for the service com-
pany to be reimbursed on the warranty). Gladu testified
that the reason he did not turn it in was that he was not
asked for it and that his discharge intervened before he
could turn it in. He further testified that when he picked up
his tools after his discharge, he took the seal-along with
him. It is noted that he turned in the work order at approx-
imately 9 a.m. and he was not discharged until at or after 3
p.m.
With respect to the termination interview, Gladu testi-
fied that at 3 p.m. he went back to the dispatcher's office
and was informed by Nissen that there were no more jobs
for him, that de laCuadra wanted to see him, that he wait-
ed until close to 4 o'clock and then Nissen took him to de
la Cuadra's office. He further testified that when he went
in to de la Cuadra's office, he told him he was fired, that he
asked him for the reason, that de la Cuadra told him to just
come back tomorrow and that he, would give him his pay-
check and the reason why he fired him, and that he asked
de la Cuadra if he could have a photostat of the work
orders, that de la Cuadra had a job ticket in his hand.
When I questioned him as to why he wanted a photostat of
the job ticket, Gladu testified "because I thought that even-
tual [sic] they might accuse me of not having completed my
job, which is what I was required to do and it was on the
job order."
De la Cuadra testified that Nissen, who is alternatively
referred to as the dispatcher or shop foreman, reported to
him that Gladu had not done the job on the work order
which he had turned in and that he (de la Cuadra) pre-
pared an "internal" repair order to have the job done by
another mechanic. His testimony as to the termination in-
terview with Gladu is as follows:
He came in my offices with Uwe. I asked him if he
knew why he was in my office and he said, "Yes."
I said, "We don't flat rate around here." By "flat
rate," I mean shortcutting, flagging for something he
didn't perform.
The next day, when Gladu returned to the job, he was
given an envelope containing a paycheck and a termina-
tion slip which stated that he was discharged "for falsifying
labor changes for work admittedly [emphasis supplied] ii
not performed on customer's. car."
Considerable testimony, was elicited from General
Counsel's witnesses as to their checking on the car after
Gladu had performed the work and as to what they ob-
served which indicated that Gladu had not pulled the
transmission and replaced the seal. There are inconsisten-
cies in their testimony but said inconsistencies are not suf-
ficient to persuade me that the testimony of de la Cuadra
11 The inclusion in the notice of the word "admittedly" is discussed here-
inbelow
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and McKinney should be discredited and that I can find
that Gladu actually performed the work.
It is noted that the job which Gladu was supposed to
perform is rated at 3.6 hours and that Gladu only had the
car for -55 minutes. Roberts testified that he can replace a
front pump seal in less than an hour and that he saw Gladu
do it in a half hour.12 It is also noted that the mechanic is
paid for the amount of hours that the job is rated at, what-
ever amount of time he actually spends, whether it be more
or less. While Respondent's counsel conceded that it is
possible for a mechanic to do a job which is rated at a
certain amount of time in substantially less time, I am not
satisfied that I can credit Gladu's testimony that a job rat-
ed at 3.6 hours was performed by him in 55 minutes or
Roberts' testimony that he could do the job in an hour and
had seen Gladu do it in a half hour. Neither of said wit-
nesses was convincing with respect to said testimony.
Even though Gladu's discharge occurred after the elec-
tion which the Union lost by a substantial margin , never-
theless it is considered quite possible that Respondent har-
bored an animus towards him for his union activities. He
had been observed wearing a union button and questioned
about it by Estes. The Respondent was informed by the
Union that Gladu was one of the three employees appoint-
ed as "volunteer organizers." Moreover, it was found here-
inabove that on or about October 3, 1974, Gladu was is-
sued a written warning notice about taking time off and
that the notice was unlawfully issued because of his union
activities. Thus, the motive for Gladu's discharge is sus-
pect. However, I am convinced that, while the Respondent
may have been glad to get rid of Gladu, his discharge was
motivated by Respondent's conviction that he had charged
for work which he had not performed.
I credit the testimony that Gladu had admitted that he
had not performed the work not only because the testimo-
ny was convincing but also in view of the wording of the
notice of his termination which contained the word that he
had "admittedly" not performed the work. It appears most
unlikely that the word "admittedly" would have'been in-
cluded in the notice of his termination had he not made
such an admission . It is also deemed unlikely that at the
time the termination notice was written de la Cuadra, who
apparently had prepared the notice of his termination,
would have had the foresight to anticipate that the issue of
whether Gladu had admitted not doing the work would
arise in the future. In any event, I am convinced, based on
credited testimony, that Respondent had good grounds to
believe that Gladu had not performed the work in 55 min-
utes for which he charged 3.6 hours and that this belief
motivated the discharge. Consequently, it is concluded that
the General Counsel has failed to prove by a preponder-
ance of the evidence the allegation that Respondent violat-
ed Section 8(a)(3) and (1) of the Act by its discharge of
Gladu on December 26, 1974.
Re 9 through 15: The remainder of the issues to be re-
solved in this proceeding relate to allegations contained in
the complaint in Case 31-CA-5329, and all of the testimo-
ny pertaining to said allegations is with respect to incidents
12 It is noted that this testimony apparently relates to issues considered
herembelow involving Roberts.
involving only Roberts, the Charging Party in said case.
It is noted that Roberts was known by Respondent to be
a union adherent. Roberts wore a union button at the shop
before the Board election, and had been named as one of
the three "volunteer organizers" by the Union in a letter
received by Respondent on September 23, 1974. Also, he
had been named by Osborne in mid-October 1974 in a
conversation with de la Cuadra as one of the two employ-
ees who talked to him about the Union, and he acted as the
union observer at the Board election on November 14.
These facts have been fully considered in resolving the is-
sues relating to Roberts.
Roberts testified that on the day after the election, he
had a conversation with Estes in which Estes asked him if
he would like to work in Lake Tahoe and he could arrange
it for him if he would. Roberts further testified that he
answered in the negative, that Estes stated, "Well, we will
see how you do," and that he added, "I will be watching
you." 13
Estes testified without contradiction, and his testimony
is credited, that Roberts had remarked to him in a conver-
sation that he would like to get out of the city and that he
told him that he had a friend who is a Lincoln-Mercury
dealer in Lake Tahoe and that he told Roberts that he
might be able to get him a job up there and asked him if he
were interested. He further testified that Roberts answered
that he would be interested. Estes, however, denied that he
made any statement to Roberts about watching him. Of the
two witnesses as to this incident, Estes was the more con-
vincing and his testimony is credited. Therefore, there is no
basis for finding an unfair labor practice based on the testi-
mony of Roberts which if credited might be construed as
an implied threat.
Re 9: Roberts testified with respect to several conversa-
tions he had with Nissen. He testified that the first conver-
sation occurred toward the end of November. His testimo-
ny with respect to said conversation is as follows:
He said, Bob, I know you are not liked upstairs here
because you tried to start a union here.
He said that I want to know for myself what your
intentions are.
He said I-I replied that I didn't think that I would
be interested in trying to start a union again as long as
they didn't want to change our payscale again.
He said that that was fine with him, and that as long
as I did my work properly that he would protect me as
well as Gene Gladu and Bill Dilday, and that as
long-although Bob Estes he wanted us out of there,
he said, we would be okay there as long as we did our
work properly, and it was left up to him.
Nissen, who entered the employ of Respondent shortly
before the election, denied that he had the above conversa-
tion to which Roberts testified. Of the two, Nissen was the
more convincing witness and his denial of the above testi-
13 There is no allegation in the complaint with respect to this testimony
and it is presumed that an allegation with respect thereto might very well
have been omitted because it occurred more than 6 months prior to the
filing of the charge by Roberts. Since there was no objection to the testimo-
ny and the matter was fully litigated, the issue with respect to this testimony
will be resolved
BOB ESTES , A CORPORATION
mony is credited. Therefore, it is concluded that General
Counsel has failed to prove by a preponderance of the evi-
dence the allegation that Respondent, through Nissen, un-
lawfully interrogated Roberts on or about December 1,
1974.
Re 9 and 10: Roberts testified that a second conversa-
tion with Nissen occurred at the end of December 1974.
Nissen's testimony as to that conversation is as follows:
A. He came over to me, and he told me that I was
doing a good job, that I was a good man, and why
didn't I go upstairs and settle this matter with the
union with Mr. Estes and apologize for my actions, if
necessary make amends.
Q. Was there anything further said in that conver-
sation?
A. I told him I didn't feel that I had anything to
apologize for. I hadn't done anything wrong.
Roberts further testified that Nissen might have, during
this conversation, inquired about the condition of his back
which he had injured on the job in September 1974.14
Nissen, in effect, denied Roberts' above testimony with
respect to the conversation toward the end of December,
but did state that he might have made an inquiry about his
back injury, that Roberts had complained about his back
injury to him several times and they had talked about it.
Nissen was the more convincing of the two witnesses,
therefore, his denial of Roberts' testimony is credited.
There are two allegations in the complaint in Case
31-CA-5329 that might be considered to relate to the
above testimony of Roberts. They are that Nissen unlaw-
fully interrogated Roberts about his union sympathies and
activities on or about December 31, 1974, and that on
about the same date, the Respondent, through Nissen, un-
lawfully solicited Roberts to abandon his union activities
and beliefs. It is found that General Counsel has failed to
prove by a preponderance of the evidence either of these
allegations since the only testimony of Roberts which
might be considered to relate to said allegations has not
been credited.
Re 11: Roberts testified that he had a third conversation
with Nissen on or about January 25, 1975. His testimony
with respect to that conversation is as follows:
He said I wasn't liked around town very much. I
mean that I was making a bad name for myself
around town and that he didn't see how I could have
a bad back and work so fast and good as I did. He
said that I was a good man and he wanted to keep me
there. He said why don't I go upstairs and take my
attorney if necessary and talk with Bob Estes and set-
tle matters with him.
And I do recall that I did reply to him, I told him
that I didn't feel that I had anything to discuss with
Mr. Estes, that in the past if he ever wanted to talk to
me he didn't have any difficulty to find me, he knew
where I was, and he could speak with me.
Nissen was questioned about his testimony and denied
14 His injury to his back was the basis for a workman's compensation
claim filed by him. The results of that claim are discussed herembelow
705
that he made any statement to Roberts that he was making
a bad name for himself or that people upstairs didn't like
him. In response to Roberts' testimony that he asked Rob-
erts why he didn't settle matters with Estes, Nissen testified
that he did make a statement to Roberts concerning his
back injury, that he said if there was any problem about it
he should take care of it, but that he never mentioned set-
tling it with Mr. Estes. Thus, in effect, Nissen denied the
testimony of Roberts. Again, Nissen appeared to be the
more convincing witness and, therefore, his denial of Rob-
erts' above-quoted testimony is credited. The only allega-
tion in the complaint which could possibly relate to Rob-
erts' above-quoted testimony is an allegation that on or
about January 2, 1975 (almost a month earlier), Respon-
dent, through Nissen, threatened to discharge Roberts and
to prevent him from obtaining other employment unless he
abandoned his union activities and beliefs.t5 Therefore, it is
concluded that the General Counsel has failed to prove by
a preponderance of the evidence said allegation.16
Re 12: Roberts testified that he had been away from
work starting approximately February 13, 1975, because of
the flu and that during the first day of the hearing at which
he was present under a subpena (on February 20) Nissen
informed him he would have to have a "doctor's release"
before he could return to work. Roberts further testified
that he had been out sick on previous occasions and had
not been required to provide a doctor's release before re-
turning to work. However, he further testified that the
longest time he had been away from work because of ill-
ness was 2 days.
Nissen testified that he did ask him to present a doctor's
release before returning to work. His testimony as to his
reason for doing so is as follows:
Because he was ill for quite a few days, and his wife
called me, and she was quite upset, and she told me
especially I am working him too hard. She didn't like
that at all the way I put him to work, and he came in,
and I met him here in court, and since my wife is a
nurse and my father is a doctor, I am quite concerned
of the health condition of my employees or people I
am working with.
So I asked him before you come to work I need a
certificate from your doctor that you are capable to
work again, and before you don't have it I just can't
put you back to work. I don't want, to take that
chance.
Marie Langdon, Respondent's controller, testified that it
was a company policy to require a doctor's certificate after
a prolonged illness. Her testimony with regard thereto is as
follows:
After a prolonged illness of any kind or when some-
one has a disability on file, whether it is with
Workmen's Compensation or the regular health and
accident, we do it for their benefit actually, too, be-
cause, sometimes they want to return to work not real-
Is Even if the above testimony were credited, it could not afford a basis
for finding said allegation has been sustained. The testimony is too ambigu-
ous to permit such a finding
16 There is no other testimony in the record which could possibly relate to
said allegation.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izing that it might endanger their health.
That has long been the policy.
However, Nissen, in stating the reason for asking him for
a doctor's certificate, did not mention the policy. On the
other hand, it is noted that, according to Roberts' testimo-
ny, when Roberts presented the certificate to Nissen on the
following Monday Nissen said, "good," and that he would
take it "right upstairs," which would tend to indicate that
company policy did require the doctor's certificate and
that Nissen must have been aware of it. In any event, his
testimony as to the reason for requiring it, particularly the
matter of the call from Roberts' wife is not contradicted
and, therefore, Nissen's testimony as to why he required
the doctor's certificate is credited. In light of the above, it
does not appear appropriate to find that the reason for
asking for it was discriminatorily motivated as alleged in
the complaint (because Roberts had been called as a wit-
ness by General Counsel and testified in the proceeding).
Moreover, it is noted that the requirement of a doctor's
certificate was made during the first day of the hearing
according to Roberts' testimony, and that the testimony he
gave on that day was not particularly controversial and not
likely to have invited reprisal.
Consequently, it is concluded that the General Counsel
has failed to prove by a preponderance of the evidence that
Respondent violated Section 8(a)(1) of the Act, as alleged
in the complaint, by requiring Roberts to present a doctor's
certificate before returning to work after his illness.
Re 13: The first workday after the hearing was Monday,
February 24. Roberts testified that in the morning of that
day he went to his doctor and got a release from him stat-
ing that he was able to work; that he reported to work
between 10:30 and 11 o'clock; that he gave the doctor's
certificate to Nissen, that Nissen took it from him and said,
"Good. I'll take that right upstairs"; and that he (Roberts)
proceeded to change into his work clothes. He further testi-
fied that when he returned to the dispatch area and asked
Nissen for some work to do, Nissen said that it was too late
and that there was no work for him. Nissen's testimony as
to the balance of their conversation is as follows:
He said besides, we don't have work for liars.
I told him at that point that I was sorry he felt that
way, that I thought that I had told what I felt to be the
truth at the Labor Board hearing.
He said that if I was in Germany that I would be
put in jail for that testimony.
I told him that if he liked Germany so well he
should go back there.
x
He told me to get away from him and stay away
from him, and I told him that I couldn't do that be-
cause I couldn't get any work without talking to him,
and that at that point he told me to go back to my
corner and wait.
Nissen testified as to his conversation with Roberts and
his testimony is as follows:
A. Yes, because I think I felt after he came back
and after this court trial where I was a witness was
over I felt my personal honor at stake, and I am not
born and raised in this country, and in Europe we
have different conditions, different court procedures,
and I told him as an American citizen I told him how
can you in this case raise your hand in front of the
American flag, swear under God, and lie at the same
time. I think that is the most rotten thing I have ever
seen. I have a high respect for the American court
because my first time in an American court was when
I was naturalized, and I think it was one of the great-
est things I experienced, and here these guys lie in
front of the American flag and bring testimony that
was falsified. This is between"himself and myself, has
nothing to do with him or his job or Mr. Estes, and it
was my personal honor. I told him my own feelings
about this as a European, and that was the end of that.
JUDGE: Well, did you tell him you had no work for
liars?
A. I didn't say that. I couldn't, because I needed
him.
JUDGE: Well, did you tell him to get away from you
and stay away from, you?
A. I told him stay in your corner, because I didn't
feel like talking to him any more because we like to
talk about our hobbies and these sort of things. So that
did it.
The only substantial contradiction between the testimony
of the two is that Nissen denied that he told Roberts, "We
don't have work for liars." As before, Nissen was the more
convincing witness of the two and therefore his aforesaid
denial is credited.17 There remains the issue of whether or
not his accusing Roberts of lying while testifying for the
General Counsel and swearing at him and telling him to
stay away from him 18 constitutes a violation of Section
8(a)(1) of the Act. It appears Nissen was incensed by cer-
tain of Roberts' testimony referred to hereinabove in con-
sidering the issue of Gladu's discharge. It appears that the
testimony was that he (Roberts) could do the work in an
hour that Gladu was supposed to have performed in 55
minutes and that he has observed Gladu doing the work in
half an hour. On the other hand, Nissen testified that it was
impossible to do the job in an hour.
It appears that Nissen, in lecturing Roberts about lying
on the witness stand and breaking off of personal conver-
sations with him by swearing at him and telling him to stay
away from him, was merely giving vent to his "personal
outrage and resentment, rather than to bring pressures of
fear or reprisal" for protected activity. Carpenters Union
Local 180, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, 162 NLRB 950, 960-961 (1967). See
the Board's Decision in Pontotoc Wire Products Company,
220 NLRB No. 41 (1975), as to statements made in anger
over what were believed to be false statements by employ-
ees made to a Board agent.
Since Roberts' testimony is not credited that Nissen
17 It is noted, as disclosed herembelow, that after their conversation, Nis-
sen brought a work order to Roberts
18 As disclosed herembelow, according to Roberts' uncontradicted testi-
mony at one point Nissen called him a "god-damned son of a bitch" in
telling him to stay away from him
BOB ESTES , A CORPORATION 707
threatened to withhold work from him and it is not deemed
that his above-described lecture about lying and swearing
at him and telling Roberts to stay away from him consti-
tutes a violation of Section 8(a)(1) of the Act , it is conclud-
ed that the allegation relating to this incident has not been
sustained.
Re 14: Roberts testified that, after he was sent to his
"corner" to wait, Nissen brought him a work order; that,
after, he brought the car in from the parking lot and posi-
tioned it on his lift, Nissen took the work order back from
him and gave it to Kenneth Shaw , the "other front end
man" who worked next to him; and that he gave him a
warranty order in place of it and stated that "the young
lady who owns the car doesn't want liars working on her
car; and that the work order was a small warranty order
which does not pay as well as a customer work order. Rob-
erts further testified that when he started to work on the
car for which the warranty order was written , he com-
plained to Nissen about the equipment in his stall , particu-
larly the lift.
Roberts testified that he spoke to Nissen as follows:
I told him, I said, look, I have been injured here
already, you know , trying to make a living , and I don't
want to make it any worse by injuring myself again.
He said, well, I will have to talk to Mr. de la Cuadra
' about this , and'he walked in to see Bruce.
And he came back and returned and said when you
get finished with this car, go home.
I said what do you mean go home? Am I fired or
what, you know.
He said, Mr-de la Cuadra says it is too dangerous
for you to work here, that you just should go home.
I asked him, well, okay. The lift is broken. That is
fine, and I know you guys are going to fix it , because
I have asked you. Can't I work on another lift to do
this work or-and there were other lifts available
around there, quite a few, and he said no. You can't.
We need them.
And I proceeded to work on the car that I was
working on , and I completed it. I walked over to Mr.
Nissen and with the repair order , and he said-I asked
him, well , will you people call me when my lift is re-
paired so I can go back to work, because it is costing
or it is going to cost me money staying off from work.
He said why don't you get away from me, you God
damned son of a bitch . 19 Go home. And that's what I
did. I went home.
Roberts further testified that he returned to the shop the
next day and found the lift partially repaired ; that he then
was not given the better paying customer jobs; that Shaw,
who was working next to him, was getting the better paying
customer jobs; that, on possibly February 27 or 28, he
checked the route sheet and that on that day he had one
job and "Mr. Shaw had 12, I think." He further testified
that he complained to Nissen and de la Cuadra and threat-
19 This was uncontradicted and was considered hereinabove
ened to go to the National Labor Relations Board and that
work improved after that.
Nissen denied Roberts' testimony about taking, work
away from him because the person whose car -it-was didn't
want a liar working on the car . Nissen confirmed Roberts'
testimony that he complained about the condition, of his
lift, that he told him that - since he considered it so danger-
ous that he had better go home and he would call and let
him know when the lift was repaired . Nissen further testi-
fied that he told de la Cuadra about the complaint, that he
called the repair company immediately , and that the lift
was fixed the same afternoon . As to Roberts' testimony
that he was discriminated against by being given warranty
work and Shaw was given better paying customer, work,
Nissen denied that he did so deliberately. He testified that,
on the contrary, Roberts habitually complained about get-
ting warranty work. When questioned about Roberts' testi-
mony that on one day Roberts had only one car to work
on, whereas Shaw had 12, Nissen testified that while it is
quite possible that Shaw had a few jobs which were as-
signed to him prior to Roberts' return, he added, "But -12
cars I think that sounds quite exaggerated . This is impossi-
ble. He also testified it is possible on that day which Rob-
erts testified he only had one job, "that it might have been
just that we had just one brake job coming. " General
Counsel pointed out that during the month of February,
Shaw averaged $72 per workday and that for those days
that Roberts worked in February he averaged, $23 a day
less. It appears that out of the 20 workdays in February, he
missed 8, that the day he returned he worked only a por-
tion of a day and that there, were only 4 more workdays in
February.20 Nissen was a convincing witness and I am not
of the opinion that the record will sustain a finding that
Nissen deliberately withheld work from Roberts or dis-
criminated against him by giving Shaw the better -paying
jobs. It is noted that in the following months, Shaw earned
$1,500 in March , whereas Roberts earned $1,518; and that
in April , Shaw earned $ 1,282, whereas Roberts earned
$1,440, including $31 he received for 1 day of training at
the Subaru school. -
The allegation relating to the above testimony is that
Respondent violated Section 8 (a)(4), (3), and (1) of the Act
by refusing to assign work to Roberts during the period of
February 24, 1975, through March 3, 1975. It is concluded
that the General Counsel has failed to prove by a prepon-
derance of the evidence this allegation of the complaint.
Re 15• It is alleged that on-or about May 19, 1974, Re-
spondent violated Section 8 (a)(4), (3), and (1) of the Act by
constructively discharging Roberts, It is , noted that the tes-
timony which General Counsel contends constitutes evi-
dence of a discriminatory constructive discharge relates to
events which are found to have occurred on May 20, 1975.
In considering the issue with respect to the termination
of Roberts ' employment with the ,Respondent , the, above-
mentioned elements establishing Respondent 's knowledge
of Roberts' union activity have been fully considered as
20 1 am not convinced that the daily averages earned by Shaw and Rob-
erts for the month of February afford a basis for finding that Roberts was
discriminated against in work assignments for the last 4 days in February
There are too many possible factors which could account for the disparity
other than discrimination during the last 4 workdays in February
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well as his testimony at the hearing on February 21, 1975,
and Nissen's reaction thereto.
There is testimony by Roberts which should be consid-
ered before proceeding to the testimony of what occurred
on May 20, 1975. Roberts testified that he overheard a
comment made by counsel for the Respondent to Estes
shortly after he gave his testimony (on February 21, 1975),
"about being qualified to work on transmission ." 21 Ac-
cording to Roberts' testimony, he was seated in the witness
stand at the time the remark was made and "everyone" else
was in the hearing room including me. (I assume I was
seated on the bench next to the witness when the remark
was supposedly made.) Roberts testified that the counsel
for Respondent turned to Estes (both of whom must have
been seated at the counsel table) "and said that we have to
get rid of this son-of-a-bitch." At that point in Roberts'
testimony, I stated for the record that I had not heard such
a comment, to which Roberts replied that he had and that
he observed that Estes nodded in agreement. Estes was
called to testify on rebuttal and denied that counsel for the
Respondent had made such a remark to him. The General
Counsel failed to call as a witness anyone who was in the
hearing room (at' the time the remark was supposedly
made) to corroborate Roberts' testimony. As noted herein-
above, Roberts was not a convincing witness and his above
testimony about counsel's remark to Estes, in all of the
circumstances, was most unpersuasive. Consequently, it is
not credited.
Also, Roberts testified that sometime in February 1975
(apparently before February 13) Nissen told him that
Langdon and Estes were "afraid that I might try to start
the Union again , because he knew according to American
law that I could do that again after one year's time." This
testimony was not contradicted and, therefore, is credited.
Roberts also testified without contradiction, and his testi-
mony is credited;' that in April 1975 he and Nissen were
assigned to attend Subaru training school (apparently for 1
day), that he objected to attending the school, and that he
was ordered to attend.
Turning now to the matter of the alleged discriminatory
constructive discharge, it appears that at the end of the day
on May 20, 1975, Roberts was called into Estes' office
where Estes, de la Cuadra, and Langdon were present. His
testimony as to what occurred when he arrived in the office
is as follows:
A. Well, he [Estes] told me that they had received
the letter, that he had a letter or a piece of paper in his
hand, and that from the insurance company that I was
disabled and that I would have to be transferred to the
Subaru department the very next day.
Let's see. He said that I-I told him I didn't want to
work on Subarus and that there wasn't any facilities
over there to do brake and front end work and that I
was a brake and front end man and why was he send-
21 This is apparently the same testimony referred to heremabove (with
respect to Gladu's discharge) as to the amount of time required to perform
the work which Gladu claimed he had performed on the Capri Nissen had
testified that it could not be done within the time Gladu spent on the car,
and Roberts' testimony contradicted Nissen's (which apparently gave rise to
Nissen accusing Roberts of being a liar, as set forth hereinabove)
ing me there, and besides that, I had never worked on
foreign cars to any great extent, and I was a Lincoln-
Mercury mechanic and how would I be able to do
front end work there.
He said that I was disabled, and I would have to go
there.
And then again I said I didn't want to go, and that
he was only doing that because that he wanted to
force me to leave there because of my union activity
and that that was the only reason that he was doing
that.
He said that you will go there.
I said no, I won't.
He said in that case get your tools and get out, and
I turned and walked away.
That is my best recollection, sir.
Q. Did he say anything to you about the type of
work that you would be doing in the Subaru depart-
ment, if you went there?
A. He said that I would be doing light work, like
such as tuneup, I think he answered.
Roberts credibly testified that he received his termina-
tion check the next day. He also credibly testified that he
asked if there were any complaints about his work and was
told that he was being transferred because he was disabled
and not because he was failing to do his work properly. As
to the disability, he credibly testified that he injured his
back in September 1974 and filed a claim based on that
injury. In addition, he credibly testified that he was award-
ed a settlement in May 1975. He was asked how much he
was awarded and testified as follows:
$7,000, $8,000. 7,000 something. I don't recall the
exact figure. And also that if I needed additional med-
ical attention like say that my condition should wors-
en that I should require surgery on my back that that
would be taken care 'of, and that is all that I remember
at this time.
The record reveals that on May 20, 1975, Respondent
received a letter from Universal Underwriters Insurance
Company, the insurance agent for Respondent, which let-
ter was dated May 19, 1975, and contained the following:
Re: Employee: Robert Roberts
Accident: 9-26-74
Claim No.: BC 84616 REG
Dear Mr. Estes:
I promised you that I would keep you advised of the
outcome of hearings at the Workmen 's Compensation
Appeals Board on your employees.
Last Friday Robert Roberts had his hearing and was
awarded 30% disability which amounted to $8,452.50.
The basis for this award was the doctor's report which
said that Mr. Roberts was to do no heavy lifting, no
repetitive bending or stooping, and that he was not to
work in cramped quarters.
Estes credibly testified, as did Langdon, that Respon-
dent carried a workmen's compensation policy with the
above-mentioned insurance agent, that the loss rates on its
BOB ESTES, A CORPORATION 709
policy had been had, that they were in excess of the premi-
ums paid and that its premiums had been increased. Lang-
don credibly testified that the figure for its losses was ap-
proximately 230 percent of the premiums paid over the
preceding 3 years.
Estes, Langdon, and de la Cuadra credibly testified that
the three of them had a meeting after the above-mentioned
letter from the insurance agent had been received and that
they discussed what should be done about the doctor's
statement set forth in the letter as to the type of work Rob-
erts should not be permitted to do. It appears from their
testimony, 'which is credited, that they discussed various
alternatives and decided that they did not want to lose him
as'a mechanic, since he was a good mechanic, and decided
to transfer him to the Subaru department (the corner
store), which was not equipped to do the heavier work, and
at which the lighter work, such as tuneups, was done. All
three also testified as to the interview between Estes and
Roberts, and their testimony is consistent that Estes
showed Roberts the letter or advised Roberts about the
letter from the insurance company, that Estes told him
they wanted to keep him on and that he was going to trans-
fer him to the corner shop where he could do tuneup and
fast service work and that Roberts insisted he wanted to
continue to do the type of work he was doing. According to
Estes' credited testimony, Roberts became very hostile and
accused Estes of merely trying to get rid of him and insist-
ed "he would continue on just exactly as he was or he
would not continue at all." Estes further credibly testified
that he tried to calm him down and explained to him that
the work would be much lighter at the corner store and
that the letter set out restrictions as to the work he should
be permitted to do. Estes also credibly testified that at the
conclusion of the interview, Roberts asked' for his check,
and that the next day he came back and picked up his
check and tools. Also, Estes credibly testified that the
transfer to the "corner store" might have affected Roberts'
compensation at first because he had less expertise in the
lighter work, but that tuneup and fast service men made
comparable wages with what Roberts was making and that
Roberts might make less money to start with until he ac-
quired expertise in the lighter work; that he, Estes, had
"great respect for Roberts' mechanical ability."
De la Cuadra also testified as to the interview with Rob-
erts and his testimony is consistent with that of Langdon
and Estes. De la Cuadra testified he could not remember if
Roberts was fired or that Roberts said that he quit. It is
noted that Roberts, in his application for employment at
the place where he was employeat the time of the hear-
ing, stated that he had "quit" his previous job. It is inferred
from credited testimony, that in effect, Roberts refused to
accept his assignment to the corner store and quit his em-
ployment rather than accept the assignment. Therefore, the
question is whether or not the assignment to the corner
store which provoked his quitting was discriminatorily mo-
tivated.
Despite the fact that Respondent had knowledge of
Roberts' union activity, had sent him to Subaru school,
and might have been fearful that when a year had lapsed,
after the election on November 14, 1974, a new petition
could be filed, I am of the opinion that the transfer to the
Subaru department was motivated solely by the report
from the insurance agent. The letter quite clearly indicated
that he, Roberts, should be given lighter work and the rec-
ord amply discloses that the work he had been doing in-
volved considerable amount of bending and heavy lifting
as contrasted with the work of the corner store which was
of a much lighter nature.
I am convinced from all of the circumstances that Re-
spondent did not want to get rid of Roberts and did not
attempt to transfer him to the corner store in reprisal for
his protected activity or in order to provoke him into quit-
ting. On the contrary, I am convinced from all of the cir-
cumstances 22 that the transfer to the corner store was
prompted by the letter from the insurance agent and that
the action was an attempt to retain Roberts in
Respondent's employ, despite his disability.
It is found from credited testimony that the "corner
store" was the only area in which there was an opening for
a mechanic, particularly, it appears, involving lighter work
than that which was performed in the area where Roberts
wanted to stay. Consequently, it is concluded that the Gen-
eral Counsel has failed to prove by a preponderance of the
evidence the allegation that Respondent violated Section
8(a)(4), (3), and (1) of the Act by constructively discharging
Roberts.
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
flow thereof.
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.
It having been found that Houston McNamara was un-
lawfully discharged on October 18, 1974, it will be recom-
mended that Respondent be ordered to offer him immedi-
ate and full reinstatement to his former job, or, if his job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges. It
will be further recommended that Respondent be ordered
to reimburse him for any loss of pay he may have suffered
as a result of its discriminatory action against him in the
manner set forth in F. W. Woolworth Company, 90 NLRB
22 I am not unmindful of the fact that in the previous month Roberts had
been forced to go to the Subaru school and that this would tend to indicate
that Respondent contemplated transferring him before it received the letter
from the insurance agent However , this, at most, can only lead to mere
speculation which would not offset the clear necessity of transferring him to
lighter work in order for Respondent to comply with the doctor's report set
forth in the letter from the insurance company
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
289,291-293 (1950), together with 6-percent interest there-,
on in accordance with Isis Plumbing & Heating Co., 138
NLRB 716 (1962) 23
It will be further recommended that, Respondent be re-
quired to expunge from Eugene Gladu's'personnel records
the written warning notice it issued to him on October 3,
1974.
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 violated Section 8(a)(1) of the Act by the
following conduct:
(a) By giving Eugene Gladu a written warning (about
taking time off) on October 3, 1974, because of his union
activities;
(b) By the conduct of Bruce de la Cuadra in mid-Octo-
ber 1974 in unlawfully interrogating an employee about his
union activities and those of other employees; and
(c) By soliciting grievances from employees in October
1974 and impliedly promising them benefits to restrain
them from supporting the Union.
4. Respondent violated Section 8(a)(3) and (1) of the
Act on October 18, 1974, by discharging Houston McNam-
ara.
5. General Counsel has failed to prove by a preponder-
ance of the evidence, that Respondent violated Section
8(a)(3) and (1) of the.Act by,its discharge of Eugene Gladu
on December 26, 1974.
6. General Counsel has failed to prove by a preponder-
ance of the evidence the allegations of unfair labor practic-
es set forth in the consolidated complaint in Cases
31-CA-4840 and 31-CA-4970 other than those found
hereinabove.
7. General Counsel has failed to prove by a preponder-
ance of the evidence any of the allegations of unfair labor
practices set forth in the complaint in ,Case 31-CA-5329,
including the allegation of an unlawful constructive dis-
charge of Robert Roberts.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '24
Respondent, Bob Estes, a Corporation, Inglewood, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
73 As to the effect on the amount of backpay due him by reason of his
subsequent employment by Estes Development Company and his refusal on
October 22, 1974, to continue in that employment, this issue can be resolved
in the compliance stage of this proceeding.
24 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
(a) Issuing written warning notices to employees be-
cause of their union activities.
(b) Unlawfully interrogating employees about their
union activities and those of other employees.
(c) Unlawfully soliciting grievances from employees and
impliedly promising them benefits to restrain them from
supporting the International Union, United Automobile,
Aerospace & Agricultural Implement Workers of Ameri-
ca-UAW, or any other labor organization.
(d) Discouraging membership in the aforesaid Union, or
any other labor organization , by discriminating against
employees in regard to hire or tenure of employment or
any term or condition thereof.
(e) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the, Act:
(a) Offer Houston McNamara immediate and full rein-
statement to his former job or, if hisjob no longer exists, to
a substantially equivalent position , without prejudice to his
seniority or other rights and privileges , and make him
whole for any loss of pay suffered by him by-reason of his
discriminatory discharge in the manner set forth in the sec-
tion hereinabove entitled "The Remedy."
(b) Expunge from the personnel records of Eugene Gla-
du The written warning notice issued to him on October 3,
1974.
(c) Upon request , make available to the Board or its
agents, for examination and copying, all payroll and other
records containing information concerning its backpay
obligation under this recommended Order.
(d) Post at its place of business in Inglewood , California,
copies of the attached notice marked . "Appendix ." 25 Cop-
ies of said notice on forms to be furnished by the Regional
Director for Region 31, after being duly signed by an au-
thorized representative of Respondent , shall be posted by
Respondent immediately upon receipt thereof , and main-
tained by it for 60 consecutive days thereafter , in conspicu-
ous places , including all places where notices to employees
are customarily posted . Reasonable steps shall be taken
by Respondent to insure that , said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations in the consoli-
dated complaint in Cases 31 -CA-4840 and 31 --CA-4970
which have been found hereinabove not to have been sus-
tained, should be, and hereby are , dismissed, including the
allegation of the discriminatory discharge of Eugene Gla-
du.
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
25 In the event that the Board's 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 "
BOB ESTES , A CORPORATION 711
3. It having been found that General Counsel has failed
to sustain by a preponderance of the evidence any of the
allegations of unfair labor practices contained in the com-
plaint in Case 31-CA-5329, said complaint should be, and
hereby is, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT issue any written warning notices to
employees because of their union activities and will
expunge from the personnel records of Eugene Gladu
the written warning notice issued to him on October 3,
1974.
WE WILL NOT unlawfully interrogate employees re-
garding their union activities or the union activities of
their fellow employees.
WE WILL NOT solicit grievances from employees and
impliedly promise them benefits in order to restrain
them from supporting the International Union, Unit-
ed Automobile, Aerospace & Agricultural Implement
Workers of America-UAW, or any other labor orga-
nization.
WE WILL NOT discourage membership in the afore-
said Union, or any other labor organization, by dis-
criminating against employees in regard to hire or ten-
ure of employment or any term or condition thereof.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
under Section 7 of the Act.
WE WILL offer Houston McNamara immediate and
full reinstatement to his former job or, if his job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay
suffered by him by reason of his discriminatory dis-
charge.
BOB ESTES , A CORPORATION