Downtown Ford Sales

National Labor Relations Board - Board Decisions

Feb 19, 1982

260 N.L.R.B. 309 (N.L.R.B. 1982)

DOWNTOWN FORD SALES
Downtown Ford Sales and Steve Thompson
Downtown Ford Sales, Employer-Petitioner and
Teamsters Professional, Public, Medical, Auto-
motive and Miscellaneous Employees, Local
165, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 20-CA-15765 and 20-RM-
2346
February 19, 1982
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN VAN DE WATER ANI)
MEMBERS JENKINS AND HUNTI R
On October 1, 1981, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Charging Party
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Teamsters Profes-
sional, Public, Medical, Automotive and Miscella-
neous Employees, Local 165, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, and that said labor organi-
zation is not the exclusive representative of all the
employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor Re-
lations Act, as amended.
DECISION
SIATITMINI 01: IHli CASI-
RICHA)RD D. TAPI.nZ., Administrative Law Judge:
These consolidated cases were heard in Sacramento,
California, on May 12, 1981.
The charge in Case 20-CA-15765 was filed on Octo-
ber 24, 1980, by Steve Thompson, an individual. The
complaint, which issued on December 18, 1980, alleges
that Downtown Ford Sales, herein called the Company,
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended.
On January 23, 1981, the Company filed a petition for
an election in Case 20-RM-2346. Teamsters Professional,
Public, Medical, Automotive and Miscellaneous Employ-
ees, Local 165, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, was the incumbent Union. Pur-
suant to a Stipulation for Certification Upon Consent
Election approved by the Acting Regional Director of
Region 20 on February 13, 1981, an election by secret
ballot was conducted on March 13, 1981. among the em-
ployees of the Company in an agreed-upon appropriate
bargaining unit.' The tally of ballots, which was served
on the parties immediately following the election,
showed that of approximately seven eligible voters.
seven cast ballots of which three were for the Union,
three were against the Union, and one was challenged.
The challenge was therefore critical in determining the
outcome of the election. The challenged ballot was cast
by Steve Thompson. The complaint in Case 20-CA-
15765 alleges that Thompson was discharged in violation
of Section 8(a)(3) of the Act before the date of the elec-
tion. On April 9, 1981, the Acting Regional Director for
Region 20 issued his Report on Challenged Ballot, Order
Consolidating Cases, and Notice of Hearing in which it
was ordered that a hearing be held to resolve the issues
raised by the challenged ballot and that the hearing be
consolidated with the hearing in Case 20-CA-15765 to
be held before an administrative law judge. The Acting
Regional Director requested the Administrative Law
Judge to prepare and cause to be served on the parties a
report containing resolutions of the credibility of wit-
nesses, findings of fact, and recommendations to the
Board as to the disposition of the challenged ballot.
Issues
The primary issues are:
1. Whether the Company through its vice president
and general sales manager, Steve Pleau, violated Section
8(a)(1) of the Act on July 30, 1980, by threatening to dis-
charge Steve Thompson unless he withdrew a grievance
he had filed with the Union.
2. Whether the Company violated Section 8(a)(1) and
(3) of the Act on July 31, 1980, by discharging Thomp-
son because he refused to withdraw that grievance.
I The bargaining unit was: All automoitve malnlenance specialists.
combination employees,, miscellaneous employees, recreational vehicle
employees, and [ol' truck employees: excluding clerical employees. ma-
chinlsi~ employeee, guards, sales employees. and super\isors as defirled
hy the Act
260 NLRB No. 51
309
DECISIONS OF NATIONAl LABOR RELATIONS BOARD
3. Whether the challenge to Thompson's ballot should
be sustained.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Coun-
sel for the General Counsel and for the Company argued
orally at the close of the hearing. No briefs were filed.
Upon the entire record in the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THI BUSINESS OF THI COMPANY
The Company, a California corporation with an office
and place of business in Sacramento, California, is en-
gaged in the retail sale and service of motor vehicles.
During the calendar year immediately preceding issuance
of complaint, the Company derived gross revenues in
excess of $500,000 and during that same period of time
purchased and received at its Sacramento, California, fa-
cility goods valued in excess of $5,000 directly from
points outside California. The complaint alleges, the
Company admits, and I find that the Company is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE: L.AOR ORGANIZATION INVOL.VtI)
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE Al I GEI) UNIFAIR L.ABOR PRACTICIES
A. Background
The Company had a collective-bargaining agreement
with the Union that was effective by its terms from Janu-
ary 1, 1978, to December 31, 1980.
Steve Thompson was hired by the Company in June
1978 as an automotive maintenance specialist at $6.92 an
hour. He worked as a lube man and performed light me-
chanical jobs such as oil changes, lubrications, and trans-
mission servicing. He was the only company employee in
that classification. In April 1980 there was not enough
work to keep Thompson fully occupied and on April 30,
1980, he, along with other employees, was laid off.
There is no contention that the layoff was unlawful
under the Act.
Thompson was a member of the Union and was cov-
ered by the Union's contract. The Company also has a
contract with the Machinists Union. After his layoff
Thompson made inquiries concerning the type of work
being done by employees represented by the Machinists
Union.
On June 20, 1980, Thompson went to the Union's
office and spoke to the secretary-treasurer, Vern Shorey.
At that time he submitted a written statement requesting
that grievance procedures be taken against the Company.
In that statement he contended in substance that the
Company violated the contract by laying him off and as-
signing work that he should have performed to members
of the Machinists Union Shorey assigned the matter to
Union Business Representative Jean Starns for process-
ing. Pursuant to the Union's outstanding policy Starns
did not show Thompson's June 20 written statement to
the Company but did make inquiry of the Company con-
cerning the matter. On June 30, 1980, Starns notified
Thompson that the June 20 grievance had been investi-
gated, that the investigation indicated that there was not
enough work of the sort that Thompson did to warrant
recall from layoff, and that as far as Starns was con-
cerned the grievance was closed.2
The Company has weekly management meetings. At
one of those meetings in July 1980 it was decided to
recall one laid-off employee for a 6-week period to fill in
for another employee who was taking a leave of absence.
The job opening was for a lot position which primarily
involved the washing of cars and keeping the lot clean.
It paid $6.67 an hour. Thompson was offered that job on
the basis of his seniority ranking.:' Thompson was of-
fered that position and he accepted it. He returned to
work on July 21, 1980, even though the job involved less
skills than those of a lube man and even though his pay
was 25 cents an hour less than he had previsously
earned. However he was overtly dissatisfied with the
new job. On July 23, 1980, Thompson asked the Compa-
ny's vice president and general sales manager, Steve
Pleau,4 when he would be returned to work in the shop.
Pleau said that there were not enough jobs and he could
not guarantee whether or not Thompson would return to
that position. Shortly after the recall Thompson com-
plained about his new job on the lot to Assistant Service
Manager Terry Conroy.5 Thompson said that he was a
lube man, that he did not want to wash cars, and that he
was too good to be washing cars. Conroy also received
reports that Thompson was complaining to the mechan-
ics who were ribbing him because he was washing cars.
On or about three occasions Conroy saw Thompson in
the shop area talking to mechanics when Thompson was
supposed to be washing cars in a different area. On all
three occasions mechanics complained to Conroy that
Thompson kept talking to them when they were trying
to work. On two occasions Conroy saw Thompson in
2 ()1 OOtober 21. 198). Slarns wrote Thompson as follows,
I'his is a follows-up if our telephone conversation of October 20.
1480. I spoke with you then in response to your office ,visit of Octo-
her 17, 190.
At that time (October 17th) you indicated to me that the National
Lahbor Relations Board had told you that this local could attach
Dtownltowu n Frd's records to investigate whether or not there was
enough work being done to warrant recalling you from lay-off
As I indicated to you on June 30th and on October 17th and again
on October 20th, the grievance you filed on June 20th was tinmely
and was investigated by Vern Shorey. Art Rose and myself in a
timely and proper fashion The results of the investigation were
giscn Il o you ton June 30thl These results indicated there was not
enough work, of the sort you do. to warrant a recall from lay-off
As far as I am concerned, at this time. the grievance is clhased as I
indicated to you on June 30, 1980
I recognize you are seeking your job hack. but the previous griev-
ance iyou filed is not the route to go
: There is no contention that the failure to recall Thompson before
that tine ,r that the recall itself was in siolation of the Act
4 That 'als Sticve Pleau's position during all times relesvanl hereto. The
complainl alleges, the answer admits, and I find that he was a supers'l, r
and agent iof the ColmpanL within the meanling ef the Act
I Conros was alsit dispatcher and sersice ad'sisor
310
D)OWNTOWN F()RD SALES
the dispatch office looking at records. Conroy told
Thompson that he was not supposed to be there and he
was supposed to be out washing cars.
Toward the end of July Conroy reported the above in-
cidents to Steve Pleau. He told Pleau that Thompson
was unhappy with his work. was complaining, and was
wandering around the shop talking to mechanics. As a
result of the reports that he had received. Steve Pleau
had a conversation with Thompson on July 30, 1980.
The conversation is discussed in section B below.
Shortly after his recall Thompson examined the dis-
patcher's repair log sheets and he decided that there
were a sufficient number of jobs to require his being re-
hired as a lube man. He went to the union hall and re-
ported that to the Union's secretary-treasurer. Shorey.
Shorey called the Company's president, Gene Pleau, 6
and told him that he had been informed that there were
enough jobs being done in the shop for Thompson to
return. He asked Gene Pleau whether it was true or
false. After the conversation, Shorey told Thompson that
Gene Pleau had denied that there were enough jobs.7
That conversation took place shortly after Thompson
was recalled. Not long thereafter Thompson again
looked at the log sheets and again came to the conclu-
sion that there were enough jobs being done by the Ma-
chinists Union for him to be recalled. He again returned
to the Union and told Shorey that there was enough
work for him. Shorey called Gene Pleau and said that it
had come to his attention that the Company's worksheets
revealed more jobs than the Union had been led to be-
lieve. Pleau said, "I'll put you on hold. There seems to
be a nigger in the woodpile somewhere." After a short
time Pleau came back on the phone and read off some
figures to Shorey. Shorey asked whether he could see
the records and Pleau replied something to the effect
that the Company did not have the records the Union
was looking for. There is no evidence that the Union
took any further action on the Thompson matter until
substantially after Thompson left the Company's employ
on July 31, 1980.9
6 Gene Pleau is Steve Pleau's father II is admitted and I find that
Gene Pleau is a supervisor and agent (of the Company
I This finding is based on the testimony of Thompson. Gene Pleau did
not testify and Shorey testified that he could only recall one conversation
with Gene Pleau, which is set forth below.
" At first Shorey testified that Pleau told him "no" wvhen he asked to
see the records. Later in his testimony Shorey averred that Pleau told
him the Company did not have the records Shorey was looking for or
that there were no records available for the Union
9 After he left the Company's employ. Thompson continued to press
the Union to take action On October 21. 1980. the Union sent Thompson
the letter that is quoted in fn. 2, above, which indicated that the Union
considered Thompson's grievance closed as of June 30, 1980. On October
24. 1980, Thompson filed an unfair labor practice charge against the
Union alleging that the Union Was failing to represent him fairly The
Union agreed to proceed with Thompson's claim and Thompson with-
drew the unfair labor practice charge Later the Union filed a lasuii
against the Company to force the Company to go to a board of adjust
meni As of the date of the hearing in the instant case a hearing before u
board of adjustment had been scheduled but had not yet taken place
B. The July 30, 1980. Conversation Between Steve
P/eau and Thompson--The 8(a)(1) Allegations-Facts
and Conclusion
Paragraph 9 of the complaint alleges that on July 30,
1980, the Company through Steve Pleau threatened to
discharge Thompson unless Thompson withdrew a
grievance. Thompson and Pleau did have a conversation
on that date. Thompson testified to facts that would indi-
cate that an unlawful threat was made and Pleau testified
to the contrary. There was no one else present during
that conversation and the issue rests squarely on the
question of whether to believe Thompson or Pleau.
Thompson's version of the conversation was as fol-
lows. Thompson was working in the supply room locat-
ed in the used-car lot at 4 p.m. on July 30, 1980, when
Steve Pleau came into the room. Pleau asked Thompson
what Thompson's problem was and Thompson replied
that he did not have a problem. Pleau said that Thomp-
son should be happy to be working and that the Compa-
ny could have hired someone off the street to wash cars.
Thompson replied that at age 24 he saw no glory in
washing cars and that he already had 2 years' employ-
ment in the shop with no one complaining about his abil-
ity. Pleau said that there was no work in the shop that
required his services and Thompson asked why he had
not been considered for two positions that had been
filled by journeymen mechanics. Pleau replied that the
Company felt he did not have the required ability to per-
form those jobs. Thompson said that until the Company
proved to him and the Union through documentation
that there was not enough work that he was not going to
drop any grievance. Pleau replied that Thompson had
overnight to consider the situation and that Thompson
would be out of work unless he dismissed the grievance
and stopped hassling the Company with the Union.
Pleau's version of the incident was as follows. Pleau
spoke to Thompson on July 30 because of the reports
that Pleau had received from Conroy to the effect that
Thompson was unhappy with his job and had been com-
plaining to different people in the shop. Steve Pleau
knew that Union Business Agent Starns had called the
Company and spoken to his father sometime before but
as far as he knew a grievance was never filed and he was
unaware that Shorey had called. He knew of no problem
at that point with regard to the April 30 layoff of
Thompson. Based on the reports he had received from
Conroy about Thompson's being unhappy with the
work, Pleau asked Thompson what the problem was and
why Thompson could not perform the job as outlined in
the Union's agreement. Thompson complained of finan-
cial problems and his inability to move up in the shop
and Thompson asked why he had been passed up for a
mechanic's position. Pleau told him that his job qualifica-
tions were not such as to make the Company feel that he
was capable of handling the work. Thompson said that
he thought a lot boy's job was a step in the opposite di-
rection and that he was not progressing. Pleau replied
that the economic situation was such that a number of
people were having to do jobs that they did not care for.
Pleau said that the particular job that Thompson had
was available to him for about 6 weeks because another
311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union member with more seniority was on leave of ab-
sence and there were no guarantees that Thompson was
going to be a mechanic or would go back to the lube
rack. Pleau also said that he could not predict the econo-
my and there would have to be a lot of adjustments. He
said he could not make any guarantees about the future
but that right then there were 6 weeks of work and he
would like Thompson to do the job as it stood. Thomp-
son remarked that he had been to the Union and that he
felt the Company was giving his work away to the ma-
chinists. He told Pleau that he wanted to go back to
doing the lube work. Pleau said that the Company did
not have enough work for Thompson at the lube rack on
a full-time basis, that in the past Thompson had left after
2 or 3 hours on the lube rack, that now Thompson had
full time employment for at least 6 weeks, that things
could change for the better, and that Thompson was
better off the way he was than with intermittent employ-
ment. Pleau said that he wanted the complaining about
the type of work to end and he wanted Thompson just
to do the job under the contract. He also told Thompson
that he could not change the job and that it was up to
Thompson to decide whether Thompson wanted to con-
tinue to work there or wanted to leave. Thompson said
that he would have to think about it. The word "griev-
ance" was not mentioned in the conversation and Pleau
did not say anything about firing Thompson if Thomp-
son did not stop making trouble.
As between Pleau and Thompson I credit Pleau.
Pleau's demeanor on the stand was such as to instill con-
fidence in his credibility. That was not true with regard
to Thompson. In addition the surrounding circumstances
give support to Pleau's contention. The complaint that
Thompson had filed with the Union was not shown to
the Company. As far as the Company knew there was no
problem except for the fact that the Union had made cer-
tain inquiries concerning Thompson. In fact the Union
had dropped the grievance before Thompson was re-
called and it was not reactivated until Thompson left the
Company's employ. The renewed questioning of the
Company by a union agent after the recall did not
appear to pose a serious threat to the Company or give it
a motive for discharging an employee who was sched-
uled to be leaving in any event in a month when the
person he was replacing returned from leave of absence.
Furthermore Thompson demonstrated in his testimony
that he was not overly dedicated to the accuracy of his
facts. He made some misstatements concerning his
former employment on his application for employment
with the Company. He testified that a former girl friend
had filled in the application, that he had just signed it,
and that he was not sure whether he had reviewed it or
not. He acknowledged that some of the statements in the
application were incorrect. His casual attitude toward ac-
curacy was reflected by his testimony that he only
looked over the application briefly because he had ob-
tained the job through a personal friend of the service
manager and he would have gotten it even if the piece of
paper were blank. Thompson's credibility was also not
enhanced by his propensity to exaggerate his ability as a
mechanic. He testified that he considered himself a jour-
neyman mechanic in areas that he knew best and then he
went on to aver that a journeyman needed 4 years of ap-
prenticeship, which he did not have. His testimony indi-
cated that both his experience and his skills as a mechan-
ic were limited.
In sum I credit Pleau's version of the conversation and
I do not credit Thompson. There is, therefore, no credi-
ble evidence that Pleau threatened to discharge Thomp-
son unless Thompson withdrew his grievance and I rec-
ommend that paragraph 9 of the complaint be dismissed.
C. The July 31, 1980, Conversation-The 8(a)(3)
Allegations-Facts and Conclusion
Paragraph 10 of the complaint alleges that on July 31
the Company discharged Thompson because of Thomp-
son's union or other protected activity. Once again there
is a sharp conflict in the testimony of Thompson and
Pleau.
Thompson testified as follows. At 8 a.m. on July 31 he
was paged by Pleau to report to Pleau's office. No one
else was present. Pleau asked Thompson what Thomp-
son's decision was. Thompson replied by saying that,
until the Company proved to him and the Union that his
grievance was false and that there was not enough work,
he was not going to dismiss any grievance. Pleau said,
"I'm sorry, you feel that way. I guess that's it." Thomp-
son then punched out and went home.
Pleau testified to the following. In the early morning
of July 31 Thompson came into the used-car office and
spoke to Pleau. No one else was present. Thompson said
that he had decided that he did not want to wash cars.
Pleau told Thompson that some work was better than
none if he were financially distressed and he asked
Thompson whether Thompson had another job to go to.
Thompson said that he had not. Thompson also said that
he did not think he wanted to continue doing what had
been assigned to him as he had been given no guarantees
about the future or about when he would get back his
old job. Pleau asked whether that meant that Thompson
was quitting and Thompson said that it did. Thompson
turned around and left the office.
For the reasons set forth in the section above, I be-
lieve that Pleau was a more credible witness than
Thompson. I therefore credit Pleau's testimony which in-
dicates that Thompson voluntarily quit his employment
and I discredit Thompson's testimony which indicates
that he was discharged. 10
Based on the findings above I conclude that there is
no credible evidence that Thompson was discharged or
constructively discharged and I therefore recommend
that part of the complaint which alleges that Thompson
was discharged because of his union or other protected
activity be dismissed.
D. The Challenged Ballot
Having found that the General Counsel has failed to
establish that Thompson was discharged in violation of
'o Thompson testified that shortly after his conversation with Pleau on
July 31, he told fellow employee Tony Martinez that he had been fired
by Pleau. Martinez corroborated that testimony and it is credited. While
that evidence establishes that Thompson's claim was not recently fabri-
cated, it does not establish that the claim is true.
312
DOWNTOWN FORD SALES
the Act and having found that he was no longer an em-
ployee at the time of the election on March 13, 1981, 1
recommend that the challenge to his ballot be sustained.
I also find that a majority of the votes cast in the elec-
tion were not cast for the Union, and I therefore recom-
mend that the results of the election be certified.
CONCI USIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Company has not engaged in the unfair labor
practices alleged in the complaint.
4. The challenge to the ballot of Thompson has been
sustained.
5. A majority of the votes cast in the election were not
cast for the Union.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER "
The complaint is dismissed in its entirety.
IT IS FURTHER RECOMMENDED that the challenges to
the ballot of Steve Thompson be sustained in connection
with the election held on March 13, 1981, in Case 20-
RM-2346, and that the results of that election be certi-
fied.
l In the event no exceptions are riled as provided by Set 102 46 of
the Rules and Regulations of the National L.abor Relations Board. the
findings. cotnclusion., 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 he deemed saivcd fir all purposes
313