Keller Ford, Inc.

National Labor Relations Board - Board Decisions

Oct 1, 2001

336 N.L.R.B. 722 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
Keller Ford, Inc. and Bryan Knapp. Case 7–CA–
43269
October 1, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On May 2, 2001, Administrative Law Judge Benjamin
Schlesinger issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed cross-exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended order as modified below.3
The judge dismissed the complaint allegation that the
Respondent violated Section 8(a)(1) of the Act when it
told employee Bryan Knapp that talking to other em-
ployees about Knapp’s insurance copayment was “haz-
ardous to [his] health,” reasoning that Knapp was acting
solely in his own interest and was not seeking group ac-
tion. In his exceptions, the General Counsel does not
contend that Knapp’s activities regarding the insurance
copayment were concerted, but the General Counsel does
argue that the Respondent’s statement nevertheless vio-
lated Section 8(a)(1). For the reasons set forth below, we
agree with the General Counsel.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
The judge found that the Respondent discharged the Charging Party,
employee Bryan Knapp, in violation of Sec. 8(a)(3) and (4) of the Act,
but that Knapp’s discharge did not independently violate Sec. 8(a)(1).
We adopt the judge’s finding that the Respondent violated Sec. 8(a)(4)
by discharging Knapp. We find it unnecessary to determine whether
the discharge also violated Sec. 8(a)(3) because the finding of such an
additional violation would not materially affect the remedy. No excep-
tions were filed to the judge’s finding that Knapp’s discharge did not
independently violate Sec. 8(a)(1).
2 We adopt the judge’s conclusion that Knapp’s demotion did not
violate the Act. The judge, however, inadvertently included relief for
the demotion in the remedy section of his decision. We hereby correct
the remedy to eliminate any reference to Knapp’s demotion.
3 We will modify the judge’s recommended Order in accordance
with Ferguson Electric Co., 335 NLRB 142 (2001).
In July 2000, Knapp repeatedly complained to his su-
pervisor, Leonard Miller, about the timing of an increase
in the Respondent’s copayment for Knapp’s life and dis-
ability insurance. Knapp believed the increase should
have occurred on July 1, 2000, and was displeased when
Miller reported the change would not take place until
January 1, 2001. Miller told Knapp that the Respondent
was not likely to change its decision unless a lot of other
employees were similarly affected by the Respondent’s
decision. Knapp said that he would speak to other em-
ployees. Miller responded by telling Knapp, “[D]on’t go
getting everybody riled up about this. It could be haz-
ardous to your health.”
In K Mart Corp., 297 NLRB 80 fn. 2 (1989), the Board
found that the employer violated Section 8(a)(1) of the
Act by broadly prohibiting an employee from discussing
terms and conditions of employment with fellow em-
ployees. The Board did not pass on whether the em-
ployee was engaged in protected concerted activity when
he discussed work related issues with coworkers, finding
instead that the employer’s broad prohibition alone was
an independent violation of the Act.
Miller’s statement warning Knapp that speaking to
other employees would be “hazardous to [his] health”
would reasonably tend to interfere with Knapp’s free
exercise of his right under Section 7 to discuss his con-
cerns regarding terms and conditions of employment
with his coworkers. Accordingly, as in K Mart Corp.,
supra, the Respondent’s broad threat independently vio-
lated Section 8(a)(1) of the Act regardless of whether
Knapp was actually engaged in protected concerted ac-
tivity.
ORDER
The National Labor Relations Board adopts the Order
of the administrative law judge as modified below and
orders that the Respondent, Keller Ford, Inc., Grand Rap-
ids, Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi-
fied.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraphs.
“(b) Telling its employees that discussing their con-
cerns over terms and conditions of employment with
other employees could be hazardous to your health.”
2. Substitute the following for newly relettered para-
graph 1(c).
“(c) Discharging its employees because they testified
in a National Labor Relations Board proceeding.”
3. Substitute the following for paragraph 2(d).
336 NLRB No. 56
KELLER FORD, INC. 723
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payments records, timecards, personnel re-
cords, and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
4. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

WE WILL NOT tell our employees that their union
organizing activity and testimony under the Act was the
reason for adverse actions against them.
WE WILL NOT tell our employees that discussing
their concerns over terms and conditions of employment
with other employees “could be hazardous to your
health.”
WE WILL NOT discharge our employees because
they testified in a National Labor Relations Board pro-
ceeding.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Bryan Knapp full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Bryan Knapp whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Bryan Knapp, and within 3
days thereafter, notify Bryan Knapp in writing that this
has been done and that the discharge will not be used
against him in anyway.
KELLER FORD, INC.
Thomas W. Doerr, Esq., for the General Counsel.
David E. Khorey, Esq., and Stephanie R. Setterington, Esq.
(Varnum, Riddering, Schmidt & Howlett), of Grand Rapids,
Michigan, for Respondent.
Bryan Knapp, of Coral, Michigan, for the Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge.
The complaint alleges that Respondent Keller Ford, Inc. de-
moted Charging Party Bryan Knapp, refused to pay the full
copayments on his life and disability insurance policy, and, on
August 2, 2000, discharged him after 11 years’ employment as
a service technician or mechanic, all in order to discriminate
against him because of his union and concerted activities and
because of his testimony in a prior Board proceeding in viola-
tion of Section 8(a)(3), (4), and (1) of the National Labor Rela-
tions Act. Respondent denies that it violated the Act in any
manner.12
Respondent, a corporation with an office and place of busi-
ness in Grand Rapids, Michigan, is a retail automobile dealer-
ship that sells and services new and used Fords and other used
automobiles. During 1999 Respondent had gross revenues in
excess of $500,000 and purchased and received at its Grand
Rapids facility goods valued in excess of $50,000 directly from
points located outside Michigan. I conclude that Respondent is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I also conclude that District
Lodge 97, International Association of Machinists and Aero-
space Workers, AFL–CIO (Union), is a labor organization
within the meaning of Section 2(5) of the Act.
Knapp testified in a hearing held on February 24–25, 1999,
before Administrative Law Judge Richard H. Beddow Jr. In
JD–62–99, issued on May 18, 1999, Judge Beddow made the
following findings of fact:13

The Respondent’s automobile dealership employs ser-
vice technicians (mechanics), who work in Respondent’s
service department under the direct supervision of service
manager Leonard Miller. Miller reports to Jerald Zezulka,
the director of Respondent’s service and part departments,
and Zezulka, in turn, reports to Owner Robert Keller.
On July 29, [1998,] in Case No. 7–CA–21382, the Un-
ion filed a petition seeking to represent Respondent’s ser-
vice technicians and an election was conducted on October
8. The tally of ballots showed that, by a vote of 9 to 8, a
majority of voters cast ballots against representation by the
Union. On October 13, the Union filed Objections to the
election.
Bryan Knapp is a service technician and one of three
group leaders in the service department. As a group leader,
Knapp oversees the delegation of work to members of his
team and works closely with service manager Miller.
Knapp and Miller regularly discuss both work and non-

12 This case was tried in Grand Rapids, Michigan, on February 13
and 14, 2001. The charge was filed on August 8 and amended on Oc-
tober 16, 2000; and the complaint was issued on October 23, 2000.
13 The quotation has been edited in minor respects to correct obvious
errors in spelling or punctuation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
work matters and occasionally socialize together outside
of work. Knapp is an avid union supporter, a leader in the
Union’s organizing campaign and he maintained frequent
contact with Paul Shemanski, the Union’s business repre-
sentative regarding events occurring at the dealership.
Technicians Gary Malmgren and Aaron Bass also
work closely with Miller, and have friendly relations with
him. Both have been primary union supporters since the
outset of the Union’s campaign and in July 1998 they and
a group of service technicians [met] with business repre-
sentative Shemanski and thereafter 11 technicians signed a
union authorization petition, and, as noted, on July 29 the
Union filed a petition for an election. At about 5 p.m., the
day the petition was filed, Miller took Knapp aside and
told him that a petition had been filed to form a union at
the dealership. Miller also said that Zezulka had told him
that he had talked to owner [and President] Keller (who
was on vacation at the time) and that Keller had told
Zezulka that he would sell the dealership before he would
let it go union. The following day, Miller again took
Knapp aside and told him that he had talked directly to
Keller and that Keller had told him that he would sell the
dealership before he would let it become unionized. Miller
admitted that he discussed the possible sale of the dealer-
ship with Knapp in July after the union petition was filed
but he did not recall “mentioning union” in the context of
that conversation. Otherwise, he did not specifically deny
telling Knapp that Keller had indicated that he would sell
the dealership before letting it become unionized and he
admitted that he may have had more than one conversation
with Knapp about the possible sale of the business.
Miller also approached service technician Gary Malm-
gren in his work area and took him to another part of the
facility where he asked Malmgren if he knew anything
about the “union petition.” When Malmgren indicated that
he knew nothing about it, Miller asked him what kind of
issues may have brought it about, and Malmgren then pro-
ceeded to tell Miller about several issues that he had heard
about from other workers.
One week later after Miller first talked to Malmgren,
Miller told Malmgren to attend a meeting on company
time in the office conference room. Two other service
technicians were present along with Miller and Keller.
Keller mentioned the union petition and asked the em-
ployees to tell him what issues needed to be addressed.
Malmgren brought up holiday pay, insurance and changes
in Respondent’s policy manual and Keller said that he
wanted to find out what the issues were and take care of
the problems in the shop.
On August 10, Miller spoke to Knapp in his work area
and asked him to actively campaign against the Union. A
week later Keller walked by Knapp in the shop and told
him that he wanted Knapp “to be his cheerleader so that
we could get this thing behind us.”
In mid-August, Keller, Zezulka, and Miller met with
service technician team leaders Bryan Knapp and Tom
Boss and technician Don Russell [who was] substituting
for team leader Phil Fassett. Keller . . . did most of the
talking at the meeting and he indicated that they needed to
figure out new ways of communicating problems in the
service department to higher management “so we could
avoid the kind of problems that we are experiencing now
with what was going on.” He then said that the team lead-
ers should talk to their fellow employees and solicit ideas
for ways to address the problems in the service department
and suggested an employee committee be formed.
One week later, again on Respondent’s time, manage-
ment met with service technician team leaders Knapp,
Boss, and Fassett joined by service technician Omri Win-
terberger, in the conference room. Keller, Zezulka, and
Miller were their [sic] and in response to questioning from
Keller, the technicians said they had two ideas as possible
ways to address the problems in the shop—a committee or
a suggestion box. They discussion how a committee
would work and Keller said he would prepare a draft of a
survey for the team leaders to review. Thereafter, Miller
gave Winterberger, Boss, Fassett, and Knapp a draft of a
survey prepared by Keller and Miller. The next day
Zezulka said that [t]he first draft of the survey “1had to be
rewritten because of the handcuffs that are on the dealer-
ship” and he showed them a second survey that was dis-
tributed to service technicians a day later.
The surveys were distributed to the service technicians
on company time, in team meetings in the break room, and
Miller told them to fill it out and put it in a ballot box.
Management then passed out a memo detailing the results
of the survey and shortly thereafter, Miller had the service
technicians vote for members of the committee, (again on
company time). Employees were not involved in counting
the ballots but management told them that Knapp, Malm-
gren, and Winterberger had been elected to the committee.
Near the end of September, Miller took Knapp outside
the building and told him that he was going to tell Knapp
once that Knapp should tone down his union rhetoric.
Miller said that Knapp had upset people by the things he
was saying about the Union. When asked, who? Miller
said that Greg McPherson [Knapp’s advisor] has gotten so
upset that he went home the previous Friday. Knapp ques-
tioned Miller’s version about why McPherson had left
early but Miller again told him to tone down the union
rhetoric.
Committee members met with Keller, Zezulka, and
Miller on September 30. Keller selected the date, time, and
place of the meeting, who would attend and what would be
discussed. Keller ran the meeting and did most of the talk-
ing. Zezulka took notes at the meeting, and Respondent
had them typed up and distributed to the committee mem-
bers. The minutes indicate that Keller started the meeting
by telling those attending what the format of the meetings
would be. Thereafter, among other things, the manage-
ment and the committee members talked about hours of
operation, pay plans, and health insurance. With regard to
health insurance, the minutes show that the committee
wanted more health insurance options made available to
employees and that Zezulka said he would check and see
if such coverage was possible. A few days after that meet-
KELLER FORD, INC. 725
ing, Bass was sent into Keller’s office to talk with Keller.
After addressing some concerns about the Union, Keller
said that he felt like he had a gun to his head and he was
not sure what he had done. Keller told Bass that being on
the committee put him in a higher position and they could
try and address some of the concerns the guys had. Keller
also said that there would be no committee if the Union
went through.
Meanwhile, service technician Aaron Bass was in the
shop near the break area on September 11 when Miller
handed him his paycheck and asked Bass how he would
vote if the election were held that day. Then, the next
week as Miller and Bass were taking a test drive in a vehi-
cle that Bass had just finished repairing, Miller, with his
hands spread apart, told Bass, “This is what you have
now.” Miller then put his hands together and told Bass that
if the employees went to a union they would start with
nothing—with zero—and then try to work their way back
up, if they could ever get back to where they started.
On September 23, Miller called the committee to his
office and told them that he wanted to give them pointers
on how to present their requests to management. Malm-
gren walked into the meeting wearing a union hat and a
union T-shirt, and Miller told him that he thought it was
poor taste for Malmgren to be wearing the union clothing.
Malmgren responded by stating that information Respon-
dent had posted on the bulletin board has been in poor
taste and when Miller then asked Malmgren to remove the
hat, he did. Miller distributed a memo from Keller, which
announced a meeting of the committee and set forth an
agenda for the meeting. Miller told them that the commit-
tee was a great tool for them to advance their agenda and
take care of problems. He advised them that when they
presented issues to management they should be united in
their requests and they should go for an “easy victory and
try to get the holiday pay issue and the policy manual issue
taken care of to show the technicians in the shop that the
committee was really working for them.”
A few days after the September 23 meeting, Malmgren
had a conversation with Miller in the parking lot in which
Miller said that Malmgren’s actions, such as wearing a un-
ion hat in the shop, were raising tensions, that several
technicians were threatening violence against Malmgren,
and that he was no longer going to tolerate such actions by
Malmgren. Miller did not deny the conversation but said
that he never threatened Malmgren with discipline if he
did not remove union insignias or articles of clothing.
In early October prior to the October 8 election,
Malmgren obtained the signatures of 13 service techni-
cians on a petition supporting the Union. Shortly after
Bass signed the petition, Miller told him he had heard that
Bass had signed the petition and he could not understand
why. Miller said that the workers were going to start with
nothing, they were going to have to work hard to even get
back to where they were now, and he asked who was go-
ing to take care of things like their “402-k” or their health
insurance. Two days prior to the election, Zezulka spoke
to Knapp in Knapp’s work area and said that it was obvi-
ous that Knapp was one of the main people involved in
getting a union and he asked Knapp to tell him what the
issues were. Knapp mentioned several issues and the con-
versation ended.
One week after the election the Respondent called all
service technicians to a meeting in the front office confer-
ence room. Keller told the technicians that the Union had
filed charges against Respondent and that, unlike the Un-
ion organizational drive, which was against the company,
the charges were a personal attack on him and he took
them very personally.
On October 21, after the election, management had a
second meeting with the committee. Keller again did most
of the talking at the meeting. He said that he did not know
if they would be able to continue to have the committee
because of the charges that had been filed. Keller asked if
the technicians had any more concerns or anything they
wanted to bring up. Knapp asked if Keller had the insur-
ance premium breakdown information that had been talked
about in the September 30 meeting. Keller said he had the
information, but he could not give it to them “because of
what was going on.” Winterberger said they needed a light
in the employee parking lot for security reasons and Keller
said he would check into it. Knapp asked if the tire balanc-
ing and mounting areas could be kept free of clutter be-
cause of a new machine that was coming in and Miller
said he would do something about it. The committee did
not meet thereafter and Respondent posted a written notice
disbanding the committee.
About 10 minutes after the October 21 meeting ended,
Miller asked Bass what he thought of the meeting. Bass
replied, “Short and sweet.” Bass then added, “Well, not so
sweet.” Miller then said that the employees just did not get
it—they did not understand that they were supposed to go
to Keller and tell him they wanted the meetings because
Keller could not tell them. Miller said that the employees
were supposed to tell Keller that they wanted the meetings
and the committee to continue.
In early December, Knapp and Miller had a dispute
about a table used by technicians when taking breaks. An
hour or two later, Miller told Knapp that the discussion
had been a “bad exchange” and he would have given
Knapp a write-up “if it wasn’t for this union thing.” Miller
added that he did not know why the “whole Union thing”
had to turn against him—be focused on him—and that
Knapp had changed since the “Union thing” had started,
and Miller did not like the change in Knapp.

Judge Beddow found that Respondent had committed nu-
merous 8(a)(1) violations, including interrogations, threats to
sell its business, giving the impression that employees’ activi-
ties were under surveillance, implying that employees would
lose benefits and would be retaliated against for engaging in
union activities, and soliciting grievances and offering to cor-
rect problems. No exceptions were filed to his decision; and on
July 14, 1999, the Board adopted it in an Order and Direction
of Second Election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
For about 7 or 8 years, and until May 1, 2000,14 Knapp had
been one of three dispatchers, also known as team or group
leaders, each of whom assigned work to the five service techni-
cians in their respective groups, based on the technicians’ ex-
perience, automotive certifications, and availability. Each dis-
patcher had a service advisor or writer, who would directly deal
with the customer and ascertain the complaints and analyze
what needed to be done. The advisors would then give work
orders to his dispatcher. In March, Respondent promoted
McPherson, Knapp’s advisor, to the position of assistant ser-
vice manager and about the same time decided to reduce the
three groups to two for a number of reasons, one of which was
that there were too many work orders that required the skills of
mechanics who were in other groups. When work was trans-
ferred from one group to another, the dispatcher often lost
touch with the order; and the work would not always be com-
pleted expeditiously.
Respondent felt that the consolidation of the three groups
into two would permit each group to have more diversity, there
would be less transfers of work from a group, and Respondent
would have greater control over the work. In fact, Zezulka had
become alarmed at the poor showing Respondent had been
making, as reflected in surveys by the Ford Motor Company.
Respondent consistently lagged behind the average Ford deal-
ership in customer satisfaction and “do it right the first time”
repairs, and Zezulka wanted Respondent not only to exceed the
average dealership but also to be in the top 10 percent of all
dealers. To reach these goals, Respondent, in addition to reduc-
ing the service groups to two and in order in increase the per-
sonal contact with the customers, added one advisor to each of
the two groups.
With this change, Knapp’s service group was eliminated; and
he lost his job as dispatcher, which paid, in addition to an
hourly wage, 60 cents for each hour of work billed by him and
the technicians who were in his group.15 Instead, he became a
full-time service technician. He and all of the technicians in his
group were reassigned to one of the two new other service
groups, whose dispatchers remained Boss and Fassett, both of
whom had been ardently opposed to the Union. The General
Counsel contends that Respondent’s underlying rationale for
not keeping or “demoting” Knapp, but keeping Boss and Fas-
sett instead, was its distaste for Knapp’s union activities and his
testimony in the hearing before Judge Beddow.
In support, the General Counsel relies on a number of inci-
dents testified to by Knapp, whom I found to be truthful and
reliable.16 To the contrary, I found that Miller’s testimony was

14 All dates are in 2000, unless otherwise indicated.
15 Technicians are paid based on the time allotted for the type of job
they are performing. More frequently than not, the time allotted is
actually more than what is actually needed to complete the job.
16 In making these and other credibility findings, I have fully re-
viewed the entire record and carefully observed the demeanor of all the
witnesses. I have also taken into consideration the apparent interests of
the witnesses; the inherent probabilities in light of other events; cor-
roboration or the lack of it; and the consistencies or inconsistencies
within the testimony of each witness and between the testimony of each
and that of other witnesses with similar apparent interests. Testimony
inconsistent with or in contradiction to that upon which my factual
replete with generalities and lacking in specifics, contradictory,
and sometimes overly dramatic. He admitted using certain lan-
guage testified to by Knapp, but improbably distorted that lan-
guage to benefit Respondent. I have generally not credited him.
In late March, when Miller told Knapp that his team would be
eliminated and the two other teams would remain, Knapp sug-
gested to him that Respondent determine which team to elimi-
nate by letting the service technicians decide or by selecting the
dispatchers with the most seniority. Miller, according to Knapp,
responded that only so much could be done because the deci-
sion was coming from “higher up.” About 2 weeks later, during
the week beginning April 10, he asked Miller if there was any-
thing new to report on the restructuring. Miller again said that
Boss and Fassett were going to remain as dispatchers and that
Knapp’s team would be eliminated and its members reassigned
to work on the remaining two teams. It was Miller’s job at that
time, according to Knapp, to “figure out how to make me whole
again as far as the money I’d be losing.” Knapp asked when the
decision would be final, and Miller said that it would be an-
nounced at the upcoming Monday team meeting on April 17.
Sometime later, Knapp found out that Respondent was going
to give him a 44-cent-per-hour raise to make up for the loss of
the 60-cent bonus for all of his group’s book hours, which av-
eraged about 250 hours weekly. About April 24, Knapp com-
plained to Miller that the raise did not approach his loss in earn-
ings. Miller replied, “Well, if it’s that much, we’re not going to
be able to make up that much of a difference.” He added,
“[T]hat kind of stuff happens to people all the time and it
shouldn’t be a big deal. And that, in fact, with the things that
happened with his [Miller’s] pay over the last couple years,
you’d think it was him that did something to the Company.”
Knapp had yet another gripe. After learning at the April 17
meeting that he was being reassigned to Fassett’s team, Knapp
told Miller about 2 days later that he wanted to be assigned to
Boss’s team instead, for a number of reasons: he did the same
type of work that Fassett did, and Fassett would assign to him-
self the better work, permitting him to make more money, and
leaving the less productive jobs to Knapp. Boss had a different
specialty and would be fairer in dispatching work to Knapp
than Fassett, with whom he had a personality conflict. Miller
replied that, if he placed Knapp on Boss’s team, then there
would be two front-end men (specialists in suspension, steer-
ing, and alignment) on the same team and he would have to
move Todd Porter to Fassett’s team. He did not want to do that
because he did not want to “ruin Porter’s attitude.” Miller sug-
gested that Knapp talk to Zezulka if he did not agree with the
reassignment. Knapp then met with Zezulka on April 21 and
expressed his concerns with the reassignment, and Zezulka
promised to get back with Knapp about the matter.
By April 25, Knapp had not heard from Zezulka, so he asked
Miller about the status of his request to be assigned to Boss’s
team. Miller answered that Knapp would be assigned to Fas-
sett’s team, to which Knapp charged that he was being pun-

findings are based has been carefully considered but discredited. See,
generally, NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where
necessary, however, I have set forth the precise reasons for my credibil-
ity resolutions.
KELLER FORD, INC. 727
ished for his union involvement and accused Respondent of
trying to make an example of him. Miller denied that and said,
inaccurately, that Knapp was the only employee with a problem
with the reassignment. Knapp said that the reassignment was
designed to hurt him and that he was taking the biggest loss.
Miller told Knapp to take it “on the chin” and to “work through
it,” adding, “What did you expect them to do?” Knapp said that
he expected them to honor their commitment that no one would
get hurt or in trouble over the Union, to which Miller said,
“[T]hat was before you had to drag it back to court. You know
how much money that cost? There’s a lot of hard feelings there
and they aren’t going to forget that.” Miller said that it was time
for Knapp to “come back to them” and “work through it” and
that Miller would look out for Knapp. Knapp said, “[I]f they
think that I’m going to quit because they’re doing all this stuff
to me, they’re wrong. . . . [I]f they want to get rid of me, they’ll
have to fire me.” Miller replied that Respondent would never
pay off Knapp to get rid of him, and Knapp said that he would
not accept a payoff. He would rather “stay and fight.”
There is sufficient reason to connect Respondent’s choice of
Fassett and Boss to the fact that Knapp had engaged in union
activities and participated in the prior Board proceeding. First,
Miller said that the decision had been made from “higher up,”
which would indicate Keller, who, Judge Beddow found, took
very personally the fact that unfair labor practice charges had
been filed against Respondent. Miller was trying, in his own
way, to protect Knapp from Keller’s quick and hasty decisions,
fearing that Keller would discharge Knapp immediately be-
cause of his opinions about Knapp’s union activities and prior
testimony. He thus warned that Knapp did not want to hear
about the decision from anyone other than him, because “those
guys up there have a hair trigger.” He added that he would deny
ever having made this comment. This is consistent with
Miller’s earlier comment, in reference to Knapp’s raise of only
44 cents, that “you’d think it was him [Miller] that did some-
thing to the Company,” an implication that Respondent’s action
resulted from something that Knapp had done to Respondent.
Furthermore, there is Miller’s question in reply to Knapp’s
charge that Respondent was reassigning him to hurt him for his
union activities and prior testimony, “What did you expect
them to do?” That was followed by Miller’s explanation that
Knapp “dragged” the unfair labor practice allegations “back to
court,” that the earlier Board proceeding was costly and created
“hard feelings,” and that “they aren’t going to forget that,”
statements that Miller did not deny or explain.
Finally, Miller stated that it was Respondent’s intent to keep
Knapp there and make life miserable for him. It did so by re-
ducing his pay, despite Respondent’s inconsistent position re-
garding the 44-cent raise that it gave him. Zezulka insisted that
he was “trying to make sure that [Knapp] wasn’t penalized,”
that the raise “would get him back to even,” and that “as a mat-
ter of fact, we felt that he would actually make even more
money than he would have been with just the productivity bo-
nus.” Miller contradicted Zezulka’s testimony and conceded
that Knapp was being paid less: “That was not supposed to
make him whole. That was like a good will gesture, to try and
get him going again.” Yet he immediately contradicted himself
when asked whether he thus recognized that the increase
probably would not make Knapp whole and would result in
some loss of earnings. Miller answered, “I did not recognize
that at all. I thought that by—you know, by taking away the
dispatch pay, and giving him the opportunity to be more pro-
ductive, that that was going to be a break even. That was my
intent.”
Respondent failed to answer adequately my request for the
formula (Zezulka testified that the amount was “based on some
calculations”) that it used in arriving at a 44-cent hourly in-
crease, $17.60 for 40 hours, to make up for the 60-cent bonus
for 250 hours weekly, or $150. Zezulka testified generally that
the 44 cents was computed based on approximately 20 percent
of Knapp’s time being spent dispatching work to other techni-
cians in the shop. (Knapp testified that he spent only 10 percent
of his time dispatching.) When he was transferred, he would be
able to be more productive because he had more time to work
on jobs. On the basis of Miller’s estimate that high producers
exceed their base rate by 60 percent, the increase would total
only 70 cents, or $28 for 40 hours. Even assuming that Knapp
could double his hours for productivity, there is no formula that
can sustain Respondent’s position; and Respondent’s attempt to
demonstrate that Knapp gained and did not lose money fails,
because it did not substantiate its conjecture that Knapp spent
20 percent of his time doing the work of a dispatcher.
Knapp’s pay records show that he lost money as a result of
the reassignment, although not as much as he testified to. A
comparison between the 8 weeks Knapp worked as dispatcher
before his transfer and the 8 weeks after reveals that his take-
home pay averaged $427.77 before; $379.05 after. His average
net pay for the previous year was $1353.19; for the short period
after he lost his dispatcher’s position, $1253.59.17 Respondent
never explained the reason that Knapp actually lost income. No
one on Respondent’s behalf claimed that Knapp was not doing
his job productively or at any level less than he was capable of
performing. Rather, Zezulka claimed that “his productivity was
still okay and doing well.” Finally, Respondent failed to submit
figures for Boss and Fassett, both before and after the change,
which would more accurately reflect what dispatchers actually
made and would compare Respondent’s treatment of them with
its treatment of Knapp. It appears that the change resulted in
more pay for Fasset and Boss. Although Respondent reduced
their bonus after May 1 to 50 cents per hour for all hours billed
by them and their technicians, a reduction of one-sixth, their
pay should have increased because they had at least three more
technicians in their groups, an increase from 6 to 9 or 50 per-
cent.
In sum, Knapp was justified for feeling that Respondent was
out to hurt him and make his life unpleasant by reason of its
failure to choose him as one of the dispatchers and its subse-
quent treatment of him. I find more than sufficient proof to
sustain a prima facie 8(a)(3) and (4) case under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983); Techno

17 In these computations, I have included only full, not partial,
weeks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
Construction Corp., 333 NLRB 75 (2001); Manno Electric, 321
NLRB 278, 280 fn. 12 (1996).
The question then turns, under Wright Line, whether Re-
spondent has shown that it would have taken the same action
even in the absence of Knapp’s union activities and prior testi-
mony. Respondent alleged that it retained Fassett and Boss for
two reasons: First, each of them had worked for a year or more
with their service advisors, with whom they had a close rela-
tionship and proved that they were capable of working together
well. Respondent did not want to disturb those relationships.
There was no similar relationship between Knapp and his ser-
vice advisor, who had been promoted to a different position and
thus was no longer working with Knapp. Although there may
be some valid justification in maintaining the relationship be-
tween the advisor and dispatcher, that is not a hard-and-fast
rule. The advisors had regular contact with all of the dispatch-
ers. Respondent once moved a service writer to a different dis-
patcher; and, on other occasions, when an advisor was on vaca-
tion or sick or at a training session, someone else had to fill in
for him, thus causing the dispatcher to work with a different
advisor. Finally, there was no evidence indicating that Knapp,
who had been dispatching work as long as Boss and longer than
Fassett, did not get along well with any of the service advisors.
An additional problem with this first reason is that it comes
primarily from Miller, whose testimony was repetitiously gen-
eral, without details or substance. One of Respondent’s conten-
tions at the hearing was that Knapp was disruptive to the work-
place. In support, Miller described the work environment of the
service department as “a small, close knit” group, working
closely together to prepare customers’ cars, where “one techni-
cian’s performance or attitude or behavior [has] an impact on
other people in the shop.” The reason for that was that “obvi-
ously, if one guy has a bad attitude towards a repair or a person,
other people like to jump on board. And they become affected
by that attitude.” When asked what he meant, he gave

a classic, great example. We took out a Kia line a couple
of years ago, and some people think that this Kia vehicle is
just cheap little jockey car.
And the first ones were—you know, they weren’t all
that great. But the year 2001, they have improve the qual-
ity of that vehicle substantially.

But I still have people that linger on that bad car mentality
on that car. And I can’t get them off it. And I’ve had other peo-
ple affected by that bad attitude towards that car, even though
the car has progressed nicely in the last two years.
That affected the technician’s “attitude towards the car, the
repairs, that customer. . . . A car may not get the attention that
it needs.” When asked if the technicians do not attend to the
repairs on Kias because they do not like the car, Miller an-
swered, “It becomes a lot more difficult for me to get those
repairs done. Because I have to work—Instead of putting
somebody on that job and having them do it, I have to go back
there and really hands on, manage that repair, lots of times.”
Later, during cross-examination, after admitting that some of
the service technicians expressed their desire not to have to
work on the Kias, Miller conceded that Knapp never did. So
this one “classic, great example” of “attitude” had no applica-
tion to Knapp at all. And the employees who appeared to be
disloyal to Respondent’s product18 were not disciplined for
many of the same reasons that Respondent ultimately utilized to
justify its discharge of Knapp, such as their failure to agree
with the way Respondent did business, their lack of fit with the
dealership, and their “cancerous attitude.”
Respondent’s second contention is that it had evaluated Fas-
sett and Boss consistently better than Knapp, and Miller re-
garded them as better dispatchers because they were “pushy” as
opposed to Knapp, who was “passive.” Respondent submitted
the 1999 evaluations for all three advisors, and they showed
Fasset and Boss with “a little bit” higher ratings. That is tem-
pered somewhat by the fact that Miller prepared these evalua-
tions after the hearing before Judge Beddow. Furthermore, the
evaluations reflected primarily the technical skills of the dis-
patchers, not their method of dispatching. To the extent that any
evaluations had any explicit relevance to the job of dispatcher,
Miller wrote on Knapp’s 1997 evaluation, “very happy doin’
what your doing.” On the next year’s evaluation, Miller wrote
that Knapp’s “dispatch knowledge [is] very good.” He even
wrote that Knapp “would make a good dispatcher,” which
could very well have meant, according to Miller, and it only
makes sense that it does, that Knapp would be a good central
dispatcher in the event that Respondent returned to the central
single dispatcher system that it had years before. Respondent
offered no evaluations of the other two dispatchers for the same
years to make a comparison. Respondent did not show, more-
over, that, as a result of their different methods of dealing with
their groups, Knapp’s group was slower, less productive, less
efficient, or less skilled.
On the other hand, no earlier evaluations of Boss and Fassett
were offered to show that Knapp was appraised more favora-
bly. And Knapp never denied Miller’s testimony that he had
complained to Knapp about his “passive dispatch” for 4 or 5
years and “absolutely” told him that he did not want him to
dispatch in this manner, “[b]ut it always kind of reverted back
to that passive dispatch.” So, it appears that Miller liked the
dispatching of Boss and Fassett better than Knapp’s, that the
two others received higher evaluations than Knapp, and that,
despite my doubts about Miller’s credibility, Respondent had
justification for not interfering with the working relationships
that existed between Boss and Fassett and their advisors. Ac-
cordingly, I find that Respondent met its Wright Line burden of
proving that it would not have retained Knapp as a dispatcher in
the absence of Knapp’s union activities. I dismiss this allega-
tion. However, because Miller told Knapp that Respondent was
refusing to consider and retain Knapp as a dispatcher because
of his union activities and because he gave testimony in the
prior NLRB proceeding, I conclude that Respondent violated
Section 8(a)(1) of the Act because of the statement’s likely
chilling effect on Knapp’s exercise of his Section 7 rights.
Mediplex of Danbury, 314 NLRB 470, 472 (1994).

18 Respondent’s handbook provided: “Employees are expected to be
loyal in their speech and conduct to the Company and the products we
sell and service. You are not performing your job properly if you are
not holding the Company and its products in high regard.”
KELLER FORD, INC. 729
The next issue concerns a life and disability insurance bene-
fit that Respondent announced in the spring and put into effect
on June 1 for the nonclerical personnel in its service and parts
departments and body shop. Respondent and the employees
were to share in the payment of premiums; and, according to
the benefits and cost summary that Respondent distributed to its
employees, it was to pay 50 percent of the premium for em-
ployees of 6–10 years and 75 percent for employees of 11–15
years. The summary specifically stated:

Contribution or changes in the contributions level by Kel-
ler Ford start or change on either the January 1 or July 1
following the hire date anniversary of an employee. On
this date Keller will initiate the new contribution level for
the employee. [Emphasis in original.]

It so happened that Knapp’s employment anniversary date
was June 26, when he was employed for 11 years. The pay-
check for Friday, July 7,19 covered the preceding week, Sunday
to Saturday, including July 1, which reflected the work for
Knapp’s anniversary, the date that he believed that Respondent
was to increase its contribution level from 50 to 75 percent. He
found that $6.16 was still being deducted from his paycheck.
The proper amount, according to him, should have been $3.08.
When Knapp complained to Miller that the check was wrong,
Miller, “thinking that [he] had missed something,” promised to
consult with Zezulka. According to Knapp, when the same
deduction appeared the next week, which would have been
Friday, July 14, he again complained to Miller, who said that he
had forgotten to inquire but promised to do so. And when the
deduction again appeared on the third check, which he would
have received on July 21, Knapp made known his displeasure;
but Miller said that he had checked with Zezulka, who said that
no changes would be made until January 1, 2001.
Miller remembered things differently, confirming Knapp’s
first questioning of the payment, but testifying that he told
Knapp on the next payday that Respondent would not pay the
higher amount. When Miller said this, Knapp said that the
summary specifically provided that the premium was supposed
to be adjusted on July 1. Miller said that there was probably
not much Knapp could do about it, especially if only a couple
employees were affected by it; but if it affected a lot of people,
then Respondent might do something about it. Knapp said that
he was going to find out how many people were involved, but
Miller warned: “Well, don’t go getting everybody riled up
about this. It could be hazardous to your health.” Knapp told at
least five other employees in late July that Respondent was not
paying the proper amount of the copayment to him and asked
whether they were affected by Respondent’s failure to increase
their premium shares. He found that no one was.
The plan summary, the wording of which was not changed in
at least two drafts, provides, consistent with Knapp’s com-
plaint, that Respondent’s copayment increased on either Janu-
ary or July 1 immediately after the employee reached the appli-
cable hire date anniversary date. The written commitment to

19 The General Counsel contends that the date of the first paycheck
about which Knapp complained was 1 week later, which is equally
likely, in which event all the dates recited are a week later.
increase the share of the premium was not optional and was
not, by its terms, limited to begin only the following January, as
Respondent contends. However, Zezulka testified that he spe-
cifically told all the employees at meetings that no changes in
copayments would be made until January 2001. His testimony
was fully corroborated by David Fishman, the insurance broker
who helped develop the plan,20 and partially by Miller, who
attended one of the three meetings conducted by Zezulka and
heard him say precisely that.
There are a variety of reasons not to believe Respondent’s
witnesses. Despite Miller’s testimony that he heard Zezulka tell
the employees that the change would come only the following
January, he never made that known to Knapp, when he first
asked, or at any later date. When Knapp first asked, Miller
replied that he had to check on it; and it was only when he did,
even according to his own testimony, that he then reported to
Knapp that the premium would not be adjusted, without giving
any reason. Miller testified that he “was actually kind of sur-
prised” by Knapp’s complaint, because he did not know that
anybody in the dealership had any idea that Respondent was
going to change its contributions within 3 weeks or 4 weeks of
installing the plan. “It seemed like an unreasonable request,”
answered Miller. Miller also admitted asking Knapp whether
other employees were affected in the same way as Knapp; and,
when Knapp said that he did not know and would ask the em-
ployees, Miller said that Miller would look into it. He gave no
reason for making that commitment, which was given in the
face of what he had allegedly heard at the meeting and been
told by Zezulka that no changes would be made.
In spite of my doubts, I find compelling the counsel for the
General Counsel’s failure to rebut specifically the testimony
regarding the oral announcement at meetings with the employ-
ees of the fact that no change would be made on July 1. Knapp
did not deny that such a statement was made or affirmatively
state that he even attended such a meeting;21 and the counsel for
the General Counsel called no witnesses, particularly employ-
ees, to deny that Zezulka made such a disclaimer. Accordingly,
I credit Respondent’s witnesses and find that its failure to in-
crease its contribution, and thus to reduce Knapp’s, was not the
result of any discrimination in violation of the Act. I dismiss
this allegation. I also find the Miller’s threat that talking to
other employees about Knapp’s copayment was “hazardous” to
Knapp’s health did not independently violate Section 8(a)(1).
Knapp’s concern with the amount of Respondent’s copayment
was his own, and not a matter of common interest. He was
trying only to ascertain the anniversary dates of the other em-
ployees, facts that might have been helpful to him, and was not
seeking group action. Miller’s threat, therefore, did not interfere
with Knapp’s protected and concerted activities.
On August 2, in the middle of the day and without warning,
Respondent discharged Knapp. Miller wrote on Respondent’s
separation form the following reasons:
20 According to Fishman, “we did that because it takes time to get
billing cycles put into place, to get the plan put into place, to get book-
lets to people. And it just didn’t make sense to put the plan into place
and then immediately adjust.”
21 The record suggests that he probably did.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
non-supportive of dealership goals
Basic Philosophical Differences 1) He doesn’t agree with
the way we do business 2) At will Employment 3) Not a
good fit for the dealership 4) Cancerous attitude

What do these vague generalities mean? The “at-will em-
ployment” reason suggests that Respondent did not have to give
a reason, and was not giving one, as it did not in the position
statement that it gave to the Region during the investigation of
the underlying unfair labor practice charge, or to Knapp, when
Miller fired him, claiming that he had been told to keep Re-
spondent’s reasons vague and general. Although Respondent
continues in its brief to rely on its right to discharge someone
for no reason at all, I find that particularly unpersuasive in the
case of an 11-year employee who was one of the few employ-
ees trusted by Respondent to be designated a dispatcher and
had served in that capacity, almost without blemish, for 7 or 8
years.
Regarding the remainder of the reasons, Respondent defends
its discharge essentially on the ground that Knapp complains;
and some of the reasons it expressed are simply repetitive.
“Non-supportive” means that he does not agree with the way
Respondent does business, at least in complaining that Respon-
dent assigned him to Fassett’s team, where he lost money, and
refused to pay the percentage of the insurance premium that
Respondent agreed in writing to do, albeit I have found that
Knapp did not hear or listen carefully to all that was said at an
employees’ meeting. Nonetheless, Zezulka’s justification—
“Because we thought that we had implemented a good benefit
plan for our employees and we felt that this just took away
from that great benefit that we were offering to them”—was not
credible. As Zezulka later acknowledged, Respondent needed
the approval of 75 percent of its employees before putting the
plan into effect. Knapp was a leader in praising the plan and
getting that support; and so his gripe that Respondent had
agreed to pay $3.08 more each week, and then did not, does not
prove that Knapp did not support the new plan. Similarly, there
was no justification for Miller’s testimony about the $3.08 co-
payment, which was very much like Zezulka’s, that

when you get a complaint about what I thought was a great
dealership benefit, I mean, it really makes me feel like we,
as a dealership, missed the boat on something. Where did
we—you know, where did we fall down? How did I not
communicate?
It makes me question my ability to manage. It affects
me.

The fact that Knapp thought that he was being overcharged
$3.08 a week could hardly be understood as “taking away from
that great benefit” or affecting anybody’s “ability to manage.”
Knapp obviously was looking out for himself, but his actions
resulted from self-interest and were not intended to harm and
could not possibly have harmed Respondent. Other than the
self-centered reasons he expressed, losing his position and the
extra money it paid and being assigned to Fassett’s team, where
Knapp thought he would lose even more than if he had been
assigned to Boss’s team, Knapp showed no signs that he was
“non-supportive” of Respondent’s general change. Rather,
Knapp was merely using Respondent’s own rules of employee
conduct, which stated that it maintained an open-door policy,
thus encouraging employees to come to Respondent with their
problems. Zezulka’s claim that “any type of questioning on
what we were doing was disruptive” was contrary to the intent
of Respondent’s rules. In addition, in answer to Keller’s con-
tention that complaints were proper as long as they were justi-
fied, Respondent’s rule does not say as much; and Knapp’s
complaint clearly was valid on its face, at least under Respon-
dent’s summary quoted above. Accordingly, I do not find
Knapp’s conduct “non-supportive.”
I return, then, to an assessment of whether Respondent truly
was motivated to discharge Knapp solely by his complaints,
without consideration of his union or concerted activities or his
prior testimony. I find that it was not, because Respondent was
unable to detail the amount and types of complaints with suffi-
cient consistency, clarity, and detail to convince me that its
claim was true and credible. Zezulka testified first that Miller
relayed Knapp’s complaints about the reassignment “several
times” within the 2 to 4 weeks after May 1. So, Miller’s com-
plaints about Knapp would have ended no later than the end of
May, perhaps earlier. Later, Zezulka answered that Miller
talked to him “[t]hree, four times,” as late as “[p]robably in
July,” but that was just an “educated guess.” Miller gave the
impression that Knapp’s complaints about his removal from his
dispatcher’s position were ongoing (Respondent’s brief states
“through the summer”). He dramatized them as follows: “It was
like a big old dark cloud over my head. It was always there.”
He reported them to Zezulka “probably biweekly,” which
would mean that he talked about them with Zezulka about
seven times. Miller also recalled that Knapp complained about
the insurance premium every few days, or at least four or five
times within the second half of July. According to Zezulka,
however, Miller pointed them out to him a “couple of times
[o]ver a couple of weeks.” The final player in this drama, Kel-
ler, reported that he had been inundated with complaints from
Zezulka, although he never detailed this inundation; and he
ordered Knapp’s discharge because Knapp was distracting
Miller and taking up his time, how much Keller found impossi-
ble to relate “specifically,” “to focus on the specific customers
and the other technicians.” Keller never testified about what
time was lost by Miller in focusing and what customers and
technicians lost his attention.
Nor did Miller testify to that distraction or loss of time. But
he did testify that, after the restructuring, Knapp’s attitude was
“definitely different. . . . [W]e didn’t really talk as much as we
did before that. We tried to stay away from each other, so we
wouldn’t get each other all mad at each other.” That impacted
on Miller’s ability to work with him: “[Y]ou can communicate
with somebody about day-to-day business, you know, if your
personal relationship has changed dramatically. As hard as you
may want to try, it is different. It is harder.” Miller could talk to
Knapp about a repair, but he didn’t try to engage in conversa-
tion “with him [Knapp] any more than [Miller] absolutely had
to.” Nonetheless, despite the fact that that the two tried to stay
away from one another and barely talked, Miller testified that
Knapp continued to complain about the reassignment, although
he was unable to detail those complaints; and when the copay-
KELLER FORD, INC. 731
ment dispute arose, Knapp continued to complain every few
days, or at least four or five times within the second half of
July, but Miller was unable to distinguish one complaint from
the next. In addition, other than his bald assertion, Miller made
no showing that any technician respected him less or ques-
tioned his authority or that his ability to manage was at all im-
paired. In sum, I find that Respondent’s defense consists of
many words, but without substance.
For 11 years, Knapp appeared to be “a good fit” at Respon-
dent’s business. Respondent did not show that he did not do his
work as assigned or that he failed to do it well. The only times
that Knapp had been disciplined were twice in the early 1990’s,
when he received two warnings, one verbal and one written, for
failing to wear his safety glasses, and a written warning in 1997
for not parking in the employee parking area. Miller never sug-
gested on any of his appraisals that Knapp had suddenly
changed his work habits or had withdrawn his loyalty from
Respondent. What is possibly Miller’s worst indictment of
Knapp is that he had a “cancerous attitude,” which the counsel
for the General Counsel correctly notes is an attitude that perni-
ciously spreads to others, an expression that is more a euphe-
mism for his prounion sentiments, that he was engaging in un-
ion activities and trying to incite his fellow employees to en-
gage in protected and concerted activities, rather than a criti-
cism of Knapp for complaining to Miller. James Julian Inc. of
Delaware, 325 NLRB 1109 (1998). I found no proof that
Knapp’s attitude and complaints to Miller had anything to do
with customer dissatisfaction or unhappiness, as Respondent
repeatedly contended during the hearing. In fact, Respondent
had in its yearly evaluations rated Knapp favorably on his cus-
tomer relations; and there was nothing in any of those evalua-
tions supporting any of the reasons Respondent used to justify
his discharge on August 2.
I thus find no credible support for the reasons that Miller
wrote on Knapp’s separation form. Consistent with Board law,
where there is no legitimate reason, it is reasonable to infer that
the false reasons were interposed to conceal unlawful ones.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966); Painting Co., 330 NLRB 1000, 1001 fn. 8 (2000).
Here, as shown in the discussion of Knapp’s demotion, there
was substantial evidence of an illegal motive. Miller’s com-
ments to Knapp a few months earlier showed that Respondent
refused to keep him as a dispatcher because of Knapp’s partici-
pation in the expensive unfair labor practice hearing before
Judge Beddow. Those “hard feelings” had lasted into April.
There was no evidence that they had waned by August 2. I
conclude that Respondent violated Section 8(a)(4) of the Act by
discharging Knapp.
I also conclude that Respondent discharged him for his union
activities in violation of Section 8(a)(3) and (1) of the Act.
What precise event convinced Keller to squeeze the “hair trig-
ger” is not absolutely clear. Judge Beddow found a year earlier
that Miller did not like the change in Knapp since the “Union
thing” had started. After the Union withdrew its petition in the
late summer of 1999, Respondent must have thought that the
employees’ efforts to organize had ended. But Knapp’s activi-
ties in the spring of 2000 once again became of concern. He
renewed his attempts to obtain support of a union in April. In
July, after telling Miller that he was going to talk to other em-
ployees to see if they had been affected by Respondent’s re-
fusal to increase its copayment on July 1, and Miller had threat-
ened that such action might be “hazardous to his health,” he
asked certain employees if they would be willing to sign a peti-
tion. Some said that they would vote for a union, but did not
want to sign a petition. The Union apparently wanted a petition
signed by 60 percent of the employees, and it became apparent
to Knapp that he could not obtain that number, so he told about
seven or eight employees that he was going to check into the
possibility of signing a petition with the 30 percent of the em-
ployees that the Board’s Rules required, and then afterward, if
successful, affiliate with the Union. When asked with whom he
discussed the possibility of petitioning for another election,
Knapp named three other employees, including one who Miller
testified had complained to him about his reassignment, without
hesitation and without any sign of having made up their names
or their participation.
I credit Knapp’s testimony and find that Respondent must
have learned rather late that Knapp was again engaged in some
conduct that Respondent perceived was against its interests.
Knapp’s earlier union activity was well known to Respondent.
By the summer of 2000, Knapp was the only employee who
had testified against Respondent left in its employ, Bass having
quit during the prior summer and Malmgren having been fired
in November 1999. Respondent’s counsel conceded at the hear-
ing that Respondent’s service department was a small place,
informal, with 20 employees working in close quarters, and no
elaborate hierarchy, where everybody knows each other. There
was no showing that Knapp concealed his attempts to interest
the employees in self-organization. I impute to Respondent
knowledge of Knapp’s further attempts to organize the employ-
ees pursuant to the Board’s small plant rule. Wiese Plow Weld-
ing Co., 123 NLRB 616 (1959). I also rely on Respondent’s
precipitous discharge of Knapp, without warning, without any
incident which preceded the event, and for no believable rea-
son. Respondent must have learned that it was going to face a
costly union fight all over again, one which Keller had not for-
gotten, as shown by Miller’s earlier statements, quoted by
Judge Beddow, and his more recent statement that implied that
Knapp had done “something to the Company.” However, I also
conclude that Knapp’s discharge did not independently violate
Section 8(a)(1) of the Act. Knapp attempted in July, in further-
ance of reducing his own premium copayment, only to find out
whether other employees were similarly situated. There was no
attempt to induce group action in the interest of the employees.
Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964); Circle K Corp., 305 NLRB 932 (1991), enfd. 989
F.2d 498 (6th Cir. 1993).
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Because Respondent discriminatorily de-
moted and discharged Knapp, I shall order it to offer him rein-
statement and make him whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law, on the en-
tire record, including my consideration of the briefs submitted
by the General Counsel and Respondent, I issue the following
recommended22
ORDER
The Respondent, Keller Ford, Inc., Grand Rapids, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling its employees that their union organizing activity
and testimony under the Act were the reasons for adverse ac-
tions against them.
(b) Discharging its employees because they engaged in ac-
tivities on behalf of the Union or any other union or because
they testified in a National Labor Relations Board proceeding.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Bryan
Knapp full reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Bryan Knapp whole for any loss of earnings or
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the “Remedy” section of this
decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
three days thereafter notify Bryan Knapp in writing that this has
been done and that the discharge will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Grand Rapids, Michigan, copies of the attached notice
marked “Appendix.”23 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, Respon-
dent has gone out of business or closed the facility involved in
these proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 25, 2000.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”