Hansen Chevrolet

National Labor Relations Board - Board Decisions

Aug 16, 1978

237 N.L.R.B. 584 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hansen Chevrolet and Cornelius Suggs
Felix Chevrolet and Cornelius Suggs. Cases 31 ('A
7042 and 31 -CA -7043
August 16, 1978
DECISION AND ORI)ER
BY CHAIRMAN FANNIN( AN[) MtN1BM RS Jt NKINS
AND PEN[ I10()
On March 8, 1978. Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter. Respondent Hansen
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National l.abor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administratie Law Judge, as modified
below, and hereby orders that the Respondent. Han-
sen Chevrolet, Los Angeles. California. its officers.
agents, successors, and assigns, shall take the action
set forth in said recommended Order, as so modified:
Substitute the following for paragraph 2(a):
"(a) Immediately offer Cornelius Suggs reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position.
without prejudice to his seniority or other rights and
privileges, and make him whole for lost earnings.
plus interest, in the manner set forth in the remedy
section of this Decision."
IT IS FURTHER ORDEtRED that the consolidated com-
plaint insofar as it relates to Respondent Felix ('hev-
rolet be, and it hereby is, dismissed.
DECISION
SIA1EMENI Of IHF( CASE
JAMES M. KENNEDY, Administrative Law Judge: 'This case
was heard before me on September 20 and 21, 1977,1 pur-
lHereinafter all dates are 1977 unless other, ise ntelld.
suant to a consolidated complaint and notice of hearing
issued on June 21 by the Regional Director of the National
Labor Relations Board for Region 31. The consolidated
complaint is based upon charges filed on May 10 (the
charge in Case 31 -CA-7042 was amended on June 13) by
Cornelius Suggs, an individual (herein called Suggs). The
consolidated complaint alleges that Hansen Chevrolet
(herein called Respondent Hansen or Hansen) and Felix
Chevrolet (herein called Respondent Felix or Felix) have
engaged in and are engaging in certain violations of Sec-
tion 8(a)(I) of the National I abor Relations Act, as
amended.
Issues
The first issue to he decided in this case is whether or not
Suggs, while employed by Respondent Hansen, engaged in.
or caused Hansen to believe he had engaged in or would
engage in, protected concerted activity. If so, did Respon-
dent Hansen discharge him for engaging in that activity?
The second issue is whether or not Respondent Felix dis-
charged Suggs upon learning of his protected concerted
activity while employed at Hansen.
All parties were given full opportunity to participate, to
introduce relevant evidence. to examine and cross-examine
witnesses, to argue orally. and to file briefs. Briefs, which
have been carefullv considered, were filed on behalf of the
General Counsel and Respondents.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FiuNisN(is o( FA(CI
Ill} BLISINFSS (F lit RESP()NDIENIS
A. Respondenl Hansen
Respondent Hansen is a California corporation which
operates a ('hevrolet dealership in Los Angeles. California.
It admits that its gross revenues annually exceed $500,000
and that it annually purchases and receives goods and ser-
vices valued in excess of $50,000 directly from suppliers
located outside California. It therefore admits, and I find,
that it is an employer engaged in commerce or in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
B. Re.spondent Felix
Respondent Felix is a California corporation which also
operates a Chevrolet dealership in Los Angeles. It, too,
admits that its gross revenues annually exceed $500,000
and that it annually purchases and receives goods and ser-
vices valued in excess of $50,000 directly from suppliers
located outside California. It therefore admits, and I find,
that it is an employer engaged in commerce or in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
237 NLRB No. 89
584
HANSEN CHEVROLET
11 III1 AlIILi A iD I AIR I H( 'R Ir is
A. Theior ol litic (Cao
The General Counsel contends that Respondent I lansen
violated Section 8(a)(1) of the Act wuhen it discharged
Suggs upon discovery that he was soliciting fellosv emplol -
ees to sign a letter, considered to be a petition, im order to
ask Corporate President Peter T. Mann for increased ag-
es and fringe benefits. Respondent contends that Suggs
was not engaging in activities for and on behalf of others
but only on behalf of himself and therefore rwas not en-
gaged in concerted activity. and his conduct va., thus un-
protected.
With regard to Respondent Felix. the General ( o unsel
contends that shortly after hiring Suggs upon his ldepartture
from Hansen, Felix learned of his concerted a cti its while
at Hansen and thereupon discharged him. Respondent Fe-
lix contends that it was not aware of Suggs' acti ities at
Hansen and that it discharged him solelI because he had
made a false unemployment compensatiotn claiml to the
State of California Emplo)nment De eloprmernt D)epart-
ment.
To some extent the credibility of xa rious witnesses is al
issue. As will be seen, although Suggs' testimon, .ias fa-
cially credible, I am somew hat chars of it because of his
admittedly having made the false clail to the unermplo' -
ment compensation agency. Mloreo er, his pretrial affida-
vit contained numerous, significant omissions. Accord-
ingly, I will, for the most part, not rely upon his testimons.
Nonetheless, as will he seen, I believe the evidence delmon-
strates that Respondent Hansen did indeed violate Section
8(a)( I) when it discharged Suggs. On the other hand. I .aim
not persuaded that Respondent Felix likewise \iolaited Sec-
tion 8(a)( ).
B. Backgrrond
Suggs is a fully qualified brake and front-end mechanic
who has generally been employed b) (Chevrolet dealerships
in the Los Angeles area. Felix hired him in Max 1969. and
he worked continuously there until September 1973, when
he left to attend the Northrop Institute of TI echnology. Af-
ter leaving that institution, he worked at a Ford dealership
and two other Chevrolet dealerships. In August 1976. he
was hired by Respondent Hansen, where he worked as a
brake and front-end mechanic until his discharge ont April
27, 1977.
While employed at Hansen, his immediate superisor
was John Harvanchik, the service manager. lars-anchik's
superiors were Gordon Prescott, the service administrator.
and Paul E. Joseph, the general manager, who has overall
responsibility for the dealership. Hansen's corporate presi-
dent is Peter T. Mann. Between April 27 and May 6, Suggs
looked for new employment. Having heard that Felix was
looking for brake and front-end mechanics. on Fridav,
May 6, he telephoned that dealership and spoke to IHoward
Wilburn, the assistant service manager. As a result of the
telephone conversation, Suggs was interviewed by Wilburn
that afternoon. Wilburn hired him, and told him to report
for work on Monday. May 9. Suggs did so. but was dis-
charged on May 10.
Wilburn's immediate superior at Felix is George Mat-
suguma. the service manager. Supersising both of them is
Peter H. Dizon, the business manager.
(. Rt','ndemi HIancn DI)ixchare Sulgtgs
Respondent Hlarinsen' employees are not represented b)
anx union. As noted. Hlansen hired Suggs in August 1976
as a brake and front-end mechanic. His work was super-
vised bh Service Manager Hlarvanchik. During this period.
Suggs ,vas piaid according to the "flat rate" formula then in
effect for all ser' ice department technicians. Under the for-
mula. each technician w\as paid a certain percentage of the
"flat rate hour" charged the customer. At that time the flat
rate hour charged the customer was $18.75. Of that
amount. Suggs. as well as the other technicians. received
$7.50. Thus. the percentage he and the other technicians
earned Vwas 40 percent of the flat rate hour.
Although the 40-percent system had been in effect for
sonme time. xen v well before Suggs was hired, in the com-
parati elx recent past the mechanics' percentage had been
as high as 50 percent. lanll employees in the industrv.
including Suggs and. no doubt. Respondent Hlansen's more
senior eniplosees, were aware of that history. Mans of the
emrplosces. inludillng Suggs. grumbled about the current
sstem anl d believed their percentage should be increased.
Itov excr. until April 1977. none of the employees did
nlutchI mnore than grumble.
l)uring the first week in April. Respondent Hansen.
through lIarvanchlik called one of its periodic service de-
paitment meetings. 'Ihese meetings were generall? called
once Ia quarter and covered shop-related matters, such as
shop policies. ('he, rolet factory warranty interpretations.
workmanriship. and attitudes. During the April 1977 meet-
ing. Hlarianchik also spoke about a special certification
progranl available to mechanics for which Hansen would
pas.
Late in tilhe meeting. Gordon Prescott. the service admin-
istrator. told the assembled group he was aware that labor
rates were rising in l.os Angeles. He said Hansen. too.
would shortl', be looking into raising the wage rates and
fringe benefits. tie specifically mentioned that two things
on his mind were the purchase of a dental addition to the
existing health plan and possibly changing the vacation
and holiday pay programs. There is some reason to think
these remarks were onls Prescott's opinion. There appears
to have been no discussion within the dealership hierarchy
which had pinned these matters down to a concrete deci-
sion.
Harvanchik specifically recalls Prescott saying that if
any of the technicians had any ideas about the fringe bene-
fits, thes could take it up with President Mann themselves
on a "casual" basis. Mann had an office in the dealership
and was present every day.
At that point Suggs asked Prescott if a letter to Mann
would be beneficial. Prescott replied that it would not, say-
ing it was better to keep the requests "low key and casual."
According to him. if the suggestions took a "formal" form.
such as a letter, it would hae to go through the chain of
command and would "box" Mann into making a decision.
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the days thereafter, Suggs, according to fellow me-
chanic Robert McDermitt, began talking with fellow em-
ployees about what Prescott had said at the service meet-
ing. McDermitt recalls Suggs asked employees if they
would go together as a group to Mr. Mann, but most of the
employees were unreceptive to that idea, explaining they
believed it wouldn't do any good either to go in as a group
or to engage in a sitdown strike. About that time Suggs
drafted a letter to be signed by those employees willing to
sign it, requesting improved wages and certain improved
benefits. Although he circulated such a letter, he obtained
few, if any, signatures.
Nonetheless, the fact that he was circulating the letter
came to Prescott's attention. On April 22.2 Harvanchik
called Suggs to his office where he and Prescott both ques-
tioned Suggs. According to Harvanchik, he had only heard
that Suggs was thinking of presenting a letter to Mann and
wanted to know if it was true. When he asked Suggs if it
was, Suggs at first denied it. Harvanchik says Prescott then
named two employees who had told him Suggs was circu-
lating such a letter among the employees. Thereupon Suggs
admitted he was. Harvanchik testified that Prescott, refer-
ring back to the service meeting, then told Suggs he had
asked him not to do that; employees should keep such re-
quests casual and low-key that a letter would prematurely
force Mann to make a decision.
Suggs replied that a letter would allow him to express
himself better than an oral request because he was not a
fluent conversationalist.
Harvanchik testified that until Prescott spoke he be-
lieved Suggs' letter was only on his own behalf, and not on
behalf of others. Moreover, he said, no one during the
course of the April 22 meeting discussed other mechanics
signing the letter or that the letter was being written as a
group effort. He says he did not tell Suggs to stop writing
the letter, but he is not certain whether Prescott prohibited
Suggs from writing the letter or not. He also says he knows
he didn't threaten to discharge Suggs: again, he is not
certain whether Prescott did or not. Harvanchik does say
he doesn't believe anyone said anything about firing Suggs
during the meeting.
Suggs asserts that the meeting began with Harvanchik
stating that he understood Suggs had been soliciting me-
chanics to sign a "letter of petition to send to the old man."
After admitting he was doing that, Prescott told him a let-
ter would not be the right way to do it and if Suggs didn't
do as Prescott said, he was "not going to be around here."
When Suggs asked for clarification, Prescott told him not
to go around trying to get people to sign letters to the boss.
Suggs replied that Prescott could dictate the quality of his
work, but not what he said. Prescott responded saying.
"This is like the Army and, as your leader. I can suppress
you." Suggs then asked Prescott how he could communi-
cate with Mann if he couldn't write a letter. Suggs recalls
Harvanchik suggesting that Suggs could have an appoint-
ment with Mann, but Prescott vetoed that idea. With that.
the meeting ended.3
2 Harvanchik had learned on April 21 that Suggs was "going around talk-
ing to employees." saying the onl) way he could express himself cisa hb
writing a letter to the dealer, Mann.
Dissatisfied with what Harvanchik and Prescott had told
him, Suggs a few days later mentioned his dissatisfaction to
Shop Foreman Don Oliver. He told Oliver he wished to
speak to someone higher in authority than the service de-
partment management. Oliver then attempted to arrange a
meeting between Suggs and Mann. After two postpone-
ments, the meeting was held on April 27 in General Man-
ager Paul Joseph's office. Mann, however, was not present.
Suggs. Harvanchik, and Joseph all testified about this
meeting. Their versions are not in significant dispute ex-
cept to the extent that Harvanchik and Joseph contend
that Suggs clearly said he was there as an individual, while
Suggs says that question was not discussed. He claims he
neither said he was there as an individual nor said he was
there on behalf of others.
Joseph opened the meeting by asking who wished to
speak. Suggs said as the meeting was at his request, he
would begin. He said he wanted to advise management he
was unhappy with the pay plan because the percentage of
the flat rate being paid him was not enough. He said infla-
tion was hurting him and he believed Mann was wealthy
enough to be able to afford to pay more. Joseph replied
that the "50-50" days were over; that inflation was affect-
ing the dealership's expenses and the service department
was operating "in the red."
According to Harvanchik, Suggs conceded he was mak-
ing more at Hansen than he had anywhere else, apparently
because the volume of business was good. Someone at the
management level, according to Harvanchik, tried to "en-
lighten" Suggs to the fact that Respondent was giving him
the best pay package it could while remaining a viable
business. They told him things had not changed signifi-
cantlk since he had been hired 6 or 7 months before, al-
though they did concede they were beginning to investigate
possible wage and benefit increases.
Both Harvanchik and Joseph testified they were certain
Suggs was speaking only for himself rather than on behalf
of others. In support of that belief, Joseph testified Suggs
"kept indicating that his only interest was his own, and that
he thought it was not fair, the pay plan was not fair per-
centage-wise."
Indeed, at the hearing as well as his prehearing affidavit,
Suggs admitted his April 27 "plea" was only for himself,
not for others: nonetheless, he says that was not actually
mentioned. He asserted, however, in his affidavit that his
plight "paralleled" that of other employees. 4
Suggs' prehearing affidavit omits the following matters which he testi-
fied occurred during the April 22 meeting: I1) Prescott's statement that if
Suggs didn't doi as Prescott said. he would he discharged (2) Prescott's
directive to cease attempting to get employees to sign letters to Mann. (3)
Prescott's statement "Ihis is like the Arms and. as sour leader. I can sup-
press sou
4Suggs' testinlon regarding the April 27 meeting included the following.
all of which is oritted from his affidavit: (I) During the meeting Joseph
aiccused hiln of talking like a union leader. (2) Prescott said he objected to
Suggs trinmg to get fellov ecmployees to sign a letter because he vies ed such
a letter as "an official act. like a union or something" (3) Prescott said he
couldn't trust Suggs to go back into the shop and not be talking to the
mechanics. Iring to get them to sign a letter or go on strike. (41 Joseph said
he didn't want anyone "polling my employees. saying how the) feel about
signling letters or going on strike " 1 he only matter which appears in his
afidailit w hich approximates this testimoins is Suggs' statement that Pres-
cott and Joseph debated firing him beca;use he was a 'rabble-rouser "
586
HANSEN CHEVROLET
Joseph said he responded saying. "We have one pay plan
which is strictly for the service department. We can't tailor-
make a pay plan for each individual." Joseph conceded.
however, that it was common sense that if an individual
wanted to talk about his pay. he would know that there
would be no way Hansen would change the pay plan just
for him.
After completing their attempt to "enlighten" Suggs, but
having been unable to persuade Suggs to give up his effort
for more money. Prescott said he didn't believe Suggs "ra-
diated happiness by virtue of his discontent with the pay
plan." Prescott and Joseph then entered into a discussion.
joined by Harvanchik, regarding whether or not they
should continue to employ Suggs. Prescott expressed a fear
that if Suggs was unhappy, his work performance would
likely suffer. Suggs assured him it would not. and Harrvan-
chik seconded Suggs. Nonetheless. according to Joseph.
Prescott decided to terminate Suggs' employment.
Shortly thereafter, at Prescott's direction, liarvanchik
prepared a termination slip. On the slip -larsanchik ex-
plained the discharge as follows: "Misconduct-attitude:
employee expressed dissatisfaction over pay plan that has
been in effect since prior to his date of hire. Discussions
with employee unsuccessful in attempts to bring about a
more positive attitude. Therefore. termination was nec. to
allow employee oportunity [sic] to find another job where
he could be happier." Suggs signed the termination slip
under some language of adhesion which said he had read
the above reason for the termination and agreed it was
correct.
With that, Suggs' employment at Hansen ended
D. Suggs' Tenure at Respondent IFeli.
As previously noted. Suggs had worked at Respondent
Felix from May 1969 to September 1973. During earls
1973, according to Felix's former service manager. James
Mandas, Suggs had engaged in certain activity to protest
wages. Mandas recalled Suggs issuing a letter throughout
the shop asking mechanics to sign it as a request for more
wages. Suggs personally gave the letter to Mandas and
Mandas recalled it had the signatures of approximately
two-thirds of the mechanics. He recalled the letter sought
more money per flat rate hour. a better health plan. and
better fringe benefits.
Mandas said the petition ultimately resulted in an im-
provement in the wage and fringe structure, although they
were not implemented immediately. He does not recall
when they actually were put into effect. saying it occurred
within the next 6 months. He knows the letter had a signifi-
cant impact upon Felix's decision to increase wages and
benefits because he participated in that decision.
Subbs believes Felix at that time engaged in a reprisal
against him for engaging in that activity because. he says,
fewer jobs were sent to him after that. Mandas recalls Suggs
complaining that fewer jobs were being sent to him and
remembers looking into it and instructing the dispatcher to
be certain that jobs were distributed equally. Mandas also
testified that to his knowledge Felix engaged in no reprisals
against Suggs for having caused the letter to be circulated and
presented.
In any event, Suggs left Respondent Felix's employ in
September 1973 in order to attend the Northrop Institute
of Technology for training as an aircraft mechanic. Ap-
proximatelx a sear later. Suggs filed an unemployment
compensation claim against Respondent Felix. In support
of that claim, he told the State Employment Development
Department, which administers unemployment insurance
claims, that he had left Respondent because of harassment
and omitted the fact that he had left in order to further his
education. Respondent Felix opposed the claim and suc-
ceeded in persuading the state agency to deny it.
On F ridas. \laN 6. 1977. Respondent Felix's assistant
service manager. Howard Wilburn, interviewed Suggs. At
that time Suggs filled out an application form listing his
previous emploslment. including the notation that he had
been terminated b\ Hansen the week before. In addition.
Suggs listed three other dealerships where he had worked,
the Northrop Institute. and his 1969 73 Felix experience.
During the interview Wilburn asked Suggs if he "could
stand a reference check." Suggs replied that he could. Ac-
cordingly. Wilburn told him to report for work on Monday
morning. May 10.
At this point, Suggs' version and Respondent Felix's ver-
sion of what occurred are at variance.
Suggs testified he reported for work on Monday, work-
ing a full 8 hours on three different jobs. Late that af-
ternoon Wilburn brought him some employment forms to
be filled out and brought back on Tuesday. He says that on
I'uesda' he reported for work about 7:30 a.m., and about 8
a.m. Wilburn asked him for the forms. Suggs said he hadn't
brought them, and Wilburn asked Suggs to go to the office
to fill them out. Suggs did so. About 9 a.m., after having given
Wilburn the completed forms, Wilburn invited Suggs to a
coffee break at a nearby coffee shop.
Suggs sass the coffee break was spent discussing how
things were when he had worked for Felix in the past. As
thes were returning to the shop, according to Suggs. Wil-
burn said. "I've got a problem with you .... Do you
remember when I asked you if sou could stand a reference
check?" When Suggs replied he did, Wilburn said, "Well, I
called back to your former employer, Hansen, and I found
out that you were a troublemaker there, trying to start a
union. I've checked your past record here, and I found out
that you were a troublemaker here. you tried to start a
union. So I can't have you working around here. So you
just pack sour tools up and go on down the road." Suggs
also recalls Wilburn saying. "l've called your other former
employers, S & J Chevrolet, Mission Chevrolet, and they' all
tell me that sou are not rehirable. Looks like you're going
to have trouble finding work around here, so it looks like
you might as well just pack up and get out . . . it looks like
you are going to have trouble finding employment around
here unless vou can cover this up." Suggs said Wilburn had
his job application in his back pocket and pulled it out and
referred to it during the conversation. 5
'SiU ,' .Iffid.a1il Incl udec his c.lllla thai I.llburn said he had been a
trouhleli,tkel dilrllin his preX i,ou tenure. hbi orllli: ( i W blhurns sateremeni
to the efectl Ihait Siugs h.ld presilusli tried ito tart a union at Felih: I2
\ ik d .hln' aIlleed it ihemenl i l .h . :' mlietr ermlplser,. S & J ( he.rolel
and %\ilson (hen.rolet had el.en him had referenes: and ) Vilihurn'
alleged uiaIcTllenIt that Stiugc If he u ahed ti iohiain employment in Ihe area
,Inllkd h,tic ii , t, l his rPSt record
587
DECISIONS OF NAIIONAL LABOR RELATIONS BOARD
Suggs went back to his work area, locked up his tools.
and then went looking for Wilburn to ask him for a termi-
nation statement. Instead of finding Wilburn, he found
George Matsuguma. the service manager, and asked him
for the statement. Matsuguma agreed to see Wilburn about
it. Suggs then went to Matsuguma's office to wait and
shortly thereafter Wilburn appeared, saying he would get
Suggs a termination statement. A short time later Wilburn
gave one to him.
The termination statement given Suggs by Wilburn is
dated May 10 and says:
At the time Mr. Cornelius Suggs filled out the Felix
employment application he was asked if he could
stand an employment check, and he stated that there
was no trouble.
After employment check Mr. Suggs would not pass
Felix requirements for employment.
Suggs then left the premises about 10 or 10:30 a.m. with
the statement.
Respondent's witnesses report the matter somewhat dif-
ferently. According to Wilburn. he hired Suggs on Friday,
telling him to report to work on Monday and actually dis-
charged him on Tuesday. 6 Wilburn testified he needed a
good brake and front-end mechanic and believed Suggs
could fill the bill. If it were up to him, he said, he would
have kept Suggs. However, he says he was directed by Re-
spondent Felix's business manager, Peter Dizon. to dis-
charge Suggs.
Wilburn recalled the discharge occurred about noon on
Tuesday at the coffee shop next door. He says he told
Suggs, asserting to him he was attempting to avoid hurting
Suggs' feelings, that he was laying him off because he was
tightening back on the brake department and did not have
room for two employees. He says Suggs came back a day
or two later to get his check and at that time Wilburn gave
Suggs the termination letter, backdated to May 10. Wil-
burn is certain that he did not give Suggs the letter on the
same day he was discharged. He recalls the letter as being
the result of a telephone call from Suggs which occurred
several days after the discharge.
Wilburn denies that during the discharge interview he
told Suggs anything about prior employment reference
checks, unemployment hearings, or anything else. He says
the only reason he orally gave Suggs for the discharge was
the fact that Felix did not have room for two brake and
front-end mechanics. He agrees that the language of the
termination letter gives another reason, Suggs' failure to
stand an employment check, and that it does not mention
the lack of need for two employees. He denies he told
Suggs he had checked with Hansen and had learned Suggs
was trying to start a union there. He also says that he
didn't tell Suggs he had checked with Mission Chevrolet
and S & J Chevrolet or that they had said he was unrehira-
ble. He recalls that when he checked with Mission Chevro-
let, the service manager there told him Suggs was laid off
when an ill employee returned to work. He doesn't recall
who he spoke to at S & J Chevrolet or what they said about
6 Wilburn is confused about the dates of the month hich Suggs actualIly
worked. He said Monday was Mat 8 when in fact It was Mas 9. and he
thought Tuesday was May 9 when it actuall'y was Ma, 10.
Suggs. He denies having Suggs' application form with him:
he says it was in Dizon's office.
He does recall checking with Hansen's service manager.
since Suggs had recently been fired by that firm. Wilburn
said he does not recall the name of the individual he spoke
to at Hansen. He could only say he followed his practice of
asking for the service manager and identifying himself as
Felix Chevrolet. According to Wilburn, the names of the
individuals who are involved in such calls are not normally
given or sought. In any event. he recalls the Hansen service
manager saying Suggs was a "good man." Wilburn testified
Hansen's reference was the reason he hired Suggs. He said
he doesn't recall if Hansen's service manager mentioned
Suggs had recently been fired. He also says that he did not
ask IHansen why it had fired Suggs even though Suggs'
application form clearly showed that he had been terminat-
ed.
Hansen's Harvanchik testified someone from Felix had
called regarding Suggs and he simply told Felix that Suggs'
work was good. He said there was no discussion about why
Suggs had been terminated, and he denied mentioning
Suggs had circulated any letters or petitions, agitated em-
ployees. or engaged in union activities.
Dizon. who occupies the position of business manager as
well as corporate secretary-treasurer of Respondent Felix,
testified that he is also in charge of personnel. Normally, he
said, he does not involve himself directly in hiring. However,
he said that when Felix hires an individual who is a former
employee, those papers do cross his desk.
He said on Monday, May 9. Suggs' file came across his
desk as a former employee. At some point during the late
morning, he reviewed it and noticed Suggs had been in-
volved in an unemployment compensation dispute with
Felix. He examined the dispute, observed Suggs had made
a false claim to the unemployment compensation agency
and decided that anyone who would lie to the State would
also lie to a customer. Accordingly. about noon that day,
he called Service Manager George Matsuguma to his office
and told him he had to let Suggs go. Matsuguma asked if
Dizon wanted to tell Wilburn to fire Suggs or if Matsugu-
ma should tell him. Dizon agreed to speak to Wilburn and
Matsuguma then sent Wilburn to see Dizon. According to
Dizon, he had explained to Matsuguma the reason for the
discharge, that Suggs had made a false claim to the State.
but when Wilburn appeared in his office, he didn't explain
it to Wilburn, assuming Matsuguma had already done so.
He remembers telling Wilburn that Suggs' "past employ-
ment requires that we terminate him at this time." When
Wilburn protested he badly needed a brake and front end
mechanic, Dizon told him, "There is a credibility question
here, Howard, you'll just have to terminate him, you
know." He went on to tell Wilburn he had explained the
circumstances to Matsuguma and if he wished to do so,
Wilburn could discuss it with him. Nonetheless, he said,
Suggs had to be terminated. Dizon said he expected Suggs
would be discharged that same day.
Both Dizon and Wilburn testified they did not discuss
Suggs' prior employment with Hansen during this conver-
sation.
Wilburn said when Matsuguma told him he had to ter-
minate Suggs. Matsuguma did not tell him why, nor did he
588
HANSEN CHEVROLET
ask. He simply went to see Dizon. He recalls [)izon telling
him he had to fire Suggs because of a "credibility gap."
apparentl? adopting the phrase 'credibility question" used
by Dizon in his testimony. W'ilburn. however, said the
phrase "credibility gap" was not actually used by Dizon.
but words to that effect. He said Dizon did not tell him of
Suggs' false unemployment compensation claim until well
after Suggs was fired.
Wilburn was confused with regard to when Dizon gave
him the instruction to terminate Suggs. At first he testified
that the instruction was given on Monday. and he does not
know why he waited until TuesdaN to discharge Suggs.
Later he said he spoke with Dizon on Tuesday and then
corrected himself, saying Dizon's instructions were given
on Monday.
In addition. Wilburn denies ever saying to Suggs he had
checked Suggs' record and found he had tried to start a
union during his previous employment at Felix: he saxs he
did not know Suggs had tried to start a union at Felix until
the first day of the instant hearing when he heard Suggs'
and Mandas' testimony.; In addition, Wilburn denies ever
telling Suggs that in order to obtain employment in the
area he would have to cover up his past employment rec-
ords.
111 ANALYSIS 'ND ( ()N I SIONS
A. Respondent Hansen Unlavtl lul/ Discharged Suggs
In the foregoing factual explication regarding Respon-
dent Hansen's discharge of Suggs, I deliberately avoided
citing evidence given by Suggs. I did that not because
Suggs appeared to be an untrustworthy witness, but be-
cause he admittedly made a false claim to a state agency
and because his affidavit contained a number of serious
omissions. I am not certain, given the circumstances of the
case against Hansen. that Suggs' credibility is significant.
I recognize Suggs readily admitted his misconduct be-
fore the State and explained the omissions in the affidavit
as being either matters which he neglected to tell the Board
agent, which the Board agent did not ask about, or about
which he did tell the Board agent but which the Board
agent failed to include. He further testified that he gave the
affidavit to a Board agent who was serving as the Regional
Office's officer-of-the-day at the same time he filed the in-
stant charges. I am aware that Board agents who serve as
officers-of-the-day are often interrupted by telephone calls,
drop-ins, and other distractions. That being the case,
Suggs' testimony that the Board agent failed to ask certain
questions or failed to write down everything he said is a
distinct possibility. Even so, because iit seems to me that
Respondent Hansen's own witnesses testified in such a
fashion as to make out a violation. I choose to avoid Suggs'
testimony here in order to deal Kwith the case on Hlansen's
terms, thereby alleviating the need to rely upon Suggs' tes-
timony, which is subject to doubt because he made a false
claim and because his affidavit was incomplete, thereb,
making his testimony subject to challenge as a recent fabri-
cation or excessive embellishment.
'5l lburn had onl w,-rkecd fir :clx for 4 monthls l hcil the S.ui;g 1,.mlcrl
arose.
Thus. the facts as reported by Respondent's witnesses
Harvanchik and Joseph are these: In early April. during a
service department meeting. Prescott observed that Re-
spondent would. because of competitive conditions, prob-
abhl be increasing wages and fringe benefits. and invited
employees to speak to Corporate President Mann on an
indi idual basis. Suggs then asked if a letter signed hb the
mechanics %would he helpful in persuading Mann to make
beneficial changes. Prescott opposed that procedure. say-
ing it was "too formal." would box Mann in and would
have to go through Hansen's chain of command. On April
22. when Harvanchik called Suggs to his office. Prescott said,
according to Harvanchik, that he had learned from other
employees that Suggs was attempting to solicit other employ-
ees to join him in writing the letter. Suggs then admitted he
was. According to Harvanchik, however. Suggs also said his
letter was intended to be his own individual letter. That
testimony is rejected, because if Prescott knew and Suggs
admitted he was attempting to solicit other employees to sign
the letter, Suggs would not then have reversed his field and
said it was his own individual letter. Harvanchik said the
meeting ended after both he and Prescott suggested simply
that Suggs catch Mann and have an informal discussion with
him, but Suggs replied he'd rather write Mann a letter.
During the April 27 meeting, when Suggs was dis-
charged. it is clear from Joseph's testimony that Prescott
was the one who made the decision to discharge Suggs and
Joseph merely concurred and approved it. This occurred
after Suggs had made a "plea" to change the wage sched-
ule. W'hether Suggs was simply making a plea for himself
seems to be of little moment. There was only one pay sys-
tem in effect in the service shop, and Suggs. Prescott. and
Joseph well knew that the only way an individual's pay
could be changed would be to change the pay of all simi-
larls situated employees. In any, event, Prescott knew, that
onl' 4 davs before. Suggs had been actively soliciting other
employees to join in a concerted effort to obtain a change
in the pay and fringe plans, and that Suggs still wished to
write Mann a letter.
Thus. when Suggs refused to be "enlightened," Prescott
knew Suggs might well continue to obtain the collective
efforts of other employees to obtain wage increases. It was
clearly for that reason Prescott said Suggs did not "radiate
happiness." True. Prescott couched his decision in terms
relating to the probable continued quality of Suggs' work.
However. when Harvanchik. Suggs' immediate supervisor,
agreed with Suggs that his work quality would not fall,
Prescott continued to concern himself with Suggs' inability
to "radiate happiness." Obviously Suggs was unhappy with
wages and obviouslN, too, he had recently been involved in
an abortive effort to persuade other employees to join him
in a group request to Mr. Mann.
I agree with the General Counsel that Respondent had
nothing to fear from a letter individually written by Suggs.
There was no essential difference between that letter and
the informal conversation with Mann suggested by Pres-
cott. Such a letter required no formal response nor could it
push Mann into a corner. The only thing which would
have required a formal response and which might have
boxed Mann into a corner was a collective letter, exactly
the sort of letter Suggs had attempted to solicit prior to the
589
DECISIONS OF NATIONAL LABOR RELAT IONS BOARD
April 22 meeting. Thus, testimony to the effect that Suggs
was seeking an individual increase on April 27 is of no
moment. Prescott clearly was considering Suggs' previous
concerted effort and undoubtedly all were aware that even
his so-called individual effort of April 27 would necessarily
have a collective rippling effect on Suggs' fellow employ-
ees.
Accordingly, I conclude that Respondent violated Sec-
tion 8(a)(1) of the Act on April 27, when it discharged
Suggs because it was aware he had a propensity to engage
in concerted activity for and on behalf of himself and other
employees and because it feared that continuing Suggs in
its employ would result in a recurrence of such activity.
N.L.R.B. v. Sencore, Inc., 558 F.2d 443 (C.A. 8, 1977).
Although I have decided the Hansen case on the basis
that Hansen's Prescott fired Suggs because he feared Suggs
would continue to engage in collective activity to obtain
increased remuneration, there is another matter which re-
quires comment. Respondent Hansen points to the evi-
dence that on April 27, Suggs was acting only as an indi-
vidual, seeking an increase only for himself. That fact, it is
argued, demonstrates that on April 27, Suggs was not en-
gaging in concerted activity, and the case is simply one
where an employee was fired for asking for a raise for him-
self; therefore, the discharge was lawful.
Although that argument has a certain appeal, I believe it
must be rejected. Everyone employed at Hansen, employ-
ees and management alike, knew there was only one uni-
form pay system which applied to the mechanics. They
knew it was impracticable, if not impossible, to change the
system for one without changing it for all. Thus, Suggs'
request was of common interest to all employees, and man-
agement was aware of that fact. Such a fact requires the
conclusion that Hansen knew Suggs' efforts would have a
collective benefit for all the mechanics and thus was con-
certed activity protected by Section 7. See Fairmont Hotel
Company, 230 NLRB 874 (1977).
Under that logic it is immaterial that Suggs may not have
been designated as a spokesman or representative of the
other employees. In Diagnostic Center Ho.spital Corp. of
Texas, 228 NLRB 1215, 1217 (1977), the Board said an
employee's activity is concerted and protected "irrespective
of whether she was overtly designated by other employees
to act on their behalf .... It is clear . . . that Birdwell's
fellow employees shared her concern and interest in the
subject matter of the letter and, consequently, that Birdwell
was acting conertedly on behalf of her fellow employees."
See also Alleluia Cushion Co., Inc., 221 NLRB 999 (1975).
Cf. American Arbitration Association, 223 NLRB 71 (1977).
The same can clearly be said here of Suggs, and since in
this argument Hansen admits it discharged Suggs for that
effort, it follows that his discharge was unlawful.
B. The General Counsel Has ort Proven Respondent Felix
Violated the Act in its Discharge of Suggs
At the outset, it should be observed that Respondent
Felix's conduct here is somewhat suspicious. On the other
hand, the suspicious nature of the discharge is only appar-
ent by virtue of circumstances. Careful analysis of the case
reveals that the only direct evidence of unlawful motive
comes from Suggs himself. As I have noted earlier, Suggs
in the recent past has engaged in conduct lacking probity
and his affidavit contains a number of serious omissions.
Even though he appeared to be candid before me and even
though the omissions may be adequately explained, that is
not sufficient to justify full acceptance of his testimony, at
least not without additional corroborating evidence. In the
Hansen portion of this Decision such evidence was available:
here it is not.
Of course, this is not to say that Respondent's conduct
here is not curious. It had a need for a skilled brake and
front-end mechanic, and Suggs was qualified to fill that
opening. Moreover, he had only days before been dis-
charged by Hansen for having engaged in an attempt to
organize employees in a concerted effort to increase wages.
That is an activity not likely to be welcomed by a prospec-
tive employer. Moreover, Wilburn's testimony that he
hired Suggs based solely on Hansen's contention that he
was a good employee, but never asked why Hansen termi-
nated him. seems strange. Even so, it is not wholly improb-
able. Nonetheless, I believe that General Counsel has
failed to show by a preponderance of the evidence that
Respondent Felix was actually aware of Suggs' activity at
Hansen (except through Suggs' own assertion, upon which
I cannot in fairness reply).
Moreover, it appears that the decision to discharge Suggs
was made by Dizon. His testimony, which was not chal-
lenged to any significant degree, was simply that when he
learned Suggs had been rehired, he checked Respondent
Felix's files on Suggs and learned he had made a false
claim to the State unemployment compensation agency.
That, according to Dizon. triggered an immediate directive
to Matsuguma and Wilburn to discharge Suggs. I do find it
somewhat odd that Dizon only told Matsuguma, and not
Wilburn, what the "credibility question" actually was.
Even so, there is a high degree of probability that Dizon
would have assumed Matsuguma had just told Wilburn the
details and had decided not to repeat them, but simply to
make clear to Wilburn that the matter was important
enough to overrule Wilburn's decision to hire Suggs.
It appears to me that the case must be resolved on the
basis of whether or not Respondent Felix knew of Suggs'
activities at Hansen. I conclude that the General Counsel
has not proven Felix had such knowledge.
First, Wilburn's testimony that he did not discuss with
Hansen the reason for Suggs' discharge. while facially im-
probable, is corroborated by Harvanchik. Indeed, Harvan-
chik had attempted, if mildly, to persuade Prescott not to
fire Suggs. It is likely, therefore, that Harvanchik was sym-
pathetic with Suggs' plight and was willing to recommend
Suggs to Felix rather than to blackball him. Accordingly, I
believe Wilburn's testimony that no one at Hansen advised
him of Suggs' protected activities.
Aside from the conversation between Wilburn and Har-
vanchik, there is no evidence that the two dealerships com-
municated in any way about Suggs. Certainly there is no
evidence that Dizon, who made the decision to discharge
Suggs. had somehow become aware of his activities at
Hansen. I find therefore that, aside from Suggs' testimony,
there is no evidence that Felix knew of Suggs' protected
activity at Hansen.
590
HANSEN CHEVROLET
Even examining Suggs' testimony regarding his tenure at
Felix raises some questions regarding its acceptahilitD.
Suggs testified that Wilburn did not give him the employ-
ment papers until Monday afternoon, to be filled out that
night and returned on Tuesday. It seems odd to me that
then would not have been given him on the previous Fri-
das, to be returned on Monday.
The bond application, which Suggs filled out, is dated on
Monday and he testified he filled it out on that day. He
also testified, however, that after he forgot to bring the
papers with him on Tuesday. Wilburn sent him to the of-
fice to fill them out and he did so. Shortly thereafter. Suggs
says he was fired. Such testimony does not explain his sig-
nature on the bond application made the day before. I
believe, therefore, that Wilburn gave Suggs the papers on
Friday. not Monday, and it was earl) on Monday morning
that he filled them out. That certainly gives strength to
Dizon's testimony that Suggs' file came to him later that
morning.
Another item of doubt is Suggs' testimony that Wilburn
on Tuesday morning had Suggs' job application form with
him during the discharge. Wilburn denied it, saying the
application was in Dizon's office. Frankly. Wilburn's testi-
mony seems the most likely. He had no need of the appli-
cation form; he was simply carrying out Dizon's instruc-
tions. It is probable, therefore, that W'ilburn did not have
the form with him.
Suggs' testimony here, therefore, seems to suffer the dual
infirmities of confusion and embellishment. It is the embel-
lishment which concerns me most, because that casts doubt
on Suggs' version of what Wilburn told him on Tuesdas
during the discharge. s
I realize that Wilburn appears to have given shifting rea-
sons to Suggs for the discharge. The advancement of shift-
ing reasons can be evidence of guilt. yet I do not believe it
to be such here. True, the first reason Wilburn gave Suggs.
lack of need for two brake and front-end mechanics. was
false-transparently so. No one, certainly not Suggs. could
have believed it. Under that circumstance, Wilburn's ex-
planation that he was attempting to avoid hurting Suggs'
feelings is a reasonable explanation, at least as reasonable
as the contrarv explanation, that he was concealing anoth-
er motive. Giving Suggs an oral explanation which Suggs
could use with neutral effect on Suggs' prospective employers
was a reasonable action by Wilburn, who had no axe to grind
with Suggs and who was sorry he couldn't keep him. When
Suggs insisted the explanation be in writing, Wilburn gave
him a more accurate version, again pulling his punch by not
mentioning the "credibility question." Even Wilburn's dela?
in firing Suggs appears to be evidence of Wilburn's lack of
evil motive. He didn't want to fire Suggs and avoided that
distasteful task until he had prepared himself to do it.
On balance, therefore. I conclude that Respondent
Felix's explanation for its actions regarding Suggs is the
more credible. It appears that it had no knowledge of
Suggs' activities at Hansen: Suggs' contrary testimon' is
i V hlburn. too,. suffered from i2,llfUi.Mill re.rdlrli thhe ectlTRiC Of te c ll
but I cirlnilrr t i he engaged in ernhclhlshlllriet .r irtn Orhcr rLiditll I lc,ldill
me to rlrcct hil terllernxo
Nor I, Ihere ian credible Itdence than I elix held Sugit' '171 Iprecrlted
,ill itles aig in;.[ him
rejected. That being so, it follows that Felix could not have
discharged Suggs for his activities at tHansen.' I shall there-
fore recommend that the complaint against Felix be dis-
missed.
Iv THE REMLDY
Having found that Respondent Hansen has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act by discharging Cornelius Suggs for exercising
his Section 7 rights to engage in the concerted protected
activity of soliciting other employees to join with him in
making requests for improved wages and benefits. I shall
recommend that it be ordered to cease and desist there-
from and to take certain affirmative action designed to
effectuate the policies of the Act. In addition, I shall rec-
ommend that Hansen be required to immediately offer re-
instatement to Suggs and to make him whole for any loss
of pay he maN have suffered by reason of the discrimina-
tion against him. Backpay for Suggs and interest thereon
shall be computed on a quarterly basis in the manner pre-
scribed in :' 1'4' 4'oolHorth Company. 90 NLRB 289
(1950). and Florida Steel Corporation. 231 NLRB 651
(1977)."°
Upon the foregoing findings of fact and upon the entire
record in this case. I make the following:
CoN( I SIONS OF L0A-
i. Respondent Hansen Chevrolet and Respondent Felix
Chevrolet are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. On April 27. 1977. Respondent Hansen violated Sec-
tion 8(a)( 1) of the Act when it discharged its employee
Cornelius Suggs beca.use he had engaged in and it feared
he would continue to engage in the concerted protected
activit, of organizing fellow employees to collectively re-
quest increased wages and benefits.
3. Respondent Felix did not, on May 10, 1977, engage in
any violations of the Act when it discharged Suggs.
Upon the foregoing findings of fact, conclusions of law.
and the entire record in this case. and pursuant to Section
10(c) of the Act. I hereby issue the following recom-
mended:
ORDER "
1The Respondent. Hansen Cherolet. Los Angeles, Cali-
fornia, its officers, agents. successors, and assigns, shall:
I. ('ease and desist from:
(a) [)ischarging employees because they seek to orga-
nize employees to make collective demands or requests for
improsved wages and fringe benefits.
si, e. gcntridl' I . t'/,ri ,nii a ttIiiilmi (i,. 138 \t RB 7161962)
In Ihe eticnt no excceptlns ire filed ., prixmded h; Sec 10246 of the
Rules -nd Regil.oiltri f the Natinal habor Relat.n.is B.rd. the fndings
i'o ..ll U ..1 n d rTe- 'irt r llllllc ()rder hereiln hall. i.l prorided in Sec
112 4i ,! the RueI, .an Rceidatit,. hr a d opted hl the Board and henlle
iti. Lllt, /''. ht ,lk lMtl u .lwd ()r&Ir allt all hbe1 etione thereto hIJll he
dIeeimed t 11ied , Fr Ill purp..'eCs
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner threatening, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Immediately offer Cornelius Suggs reinstatement
and make him whole for lost earnings in the manner set
forth in that portion of this Decision entitled "The Rem-
edy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its Los Angeles, California, facility copies of
the attached notice marked "Appendix." 12 Copies of the
notice, on forms to be provided by the Regional Director
for Region 31, after being duly signed by the authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) 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 remainder of the consoli-
dated complaint as it relates to Respondent Felix Chevro-
let be, and it hereby is, dismissed.
] In the event that this Order is enforced b) a judgment of it lnited
States Court of Appeals. the words in the notice reading "Posted hs Order
of the National l.abor 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."
APPENDIX
NotItE To EMPLOYEES
PosIt -l) BY ORDER OF THE
NAIIONAl LABOR RFLAIIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act,
and we have been ordered to post this notice to our em-
ployees.
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activity except to
the extent that the employees' bargaining represen-
tative and employer have a collective-bargaining
agreement which imposes a lawful requirement that
employees become union members.
WI. aWl. NOT discharge employees because they en-
gage in the protected concerted activity of organizing
employees to collectively request increased wages and
benefits or because we fear they will engage in that
activity in the future.
Wti Willi NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WtLL offer to reinstate immediately Cornelius
Suggs to his former job or, if that job no longer exists,
to a similar job, without loss of seniority or other
rights and privileges, and WE WILL make him whole for
any loss of pay he may have suffered as a result of his
termination on April 27, 1977, together with interest
thereon.
HANSEN CHEVROLET
592