Leon Ames Ford

National Labor Relations Board - Board Decisions

Apr 2, 1973

202 N.L.R.B. 816 (N.L.R.B. 1973)

816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leon Ames Ford and International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 31-CA-3045
April 2, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 6, 1972, Administrative Law Judge E.
Don Wilson issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, Charging Party filed
exceptions and a supporting brief and Respondent
filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and
hereby is, dismissed in its entirety.
I We do not believe the record warrants reversal of his credibility
findings, but we do not adopt his gratuitous comments with respect to the
delay of the Union in filing a charge herein, the failure of the General
Counsel to obtain an affidavit from Harley Hasel during the investigation,
the reasons for the Union's not filing objections to the election, and the
manner of interviewing witnesses by the General Counsel
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: The
original charge in this case was filed by International
Association of Machinists and Aerospace Workers,
AFL-CIO, herein the Union , on April 18 , 1972. It was
subsequently amended on April 26, 1972, and on June 2,
1972 Based thereon, the General Counsel of the National
Labor Relations Board, herein the Board, issued a
complaint and notice of hearing on June 16, 1972, alleging
that Leon Ames Ford , herein Respondent , by various acts
and conduct , violated Section 8(a)(3) and ( 1) of the
I Hereinafter all dates refer to 1972, unless otherwise specified
2 As amended, shortly before the close of this hearing
National Labor Relations Act, herein the Act. Respondent
duly answered, denying it had violated the Act.
Pursuant to due notice a hearing in this matter was held
before me in Los Angeles, California, on August 10, 1972.
The parties fully participated. General Counsel and
Respondent filed briefs on September 14, 1972. They have
been fully considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
At all material times, Respondent has been a California
corporation, maintaining its principal place of business in
Redondo Beach, California, where it has been engaged in
the retail sale and service of automobiles. During the past
12 months, it derived gross revenues in excess of $500,000
and it purchased and received goods valued in excess of
$50,000 directly from suppliers in States other than
California. At all times material, it has been engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
At all times material, the Union has been a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues include the following : ( 1) Did Respondent, on
March 22, 1972, 1 discharge Michael Pavich, because he
engaged in Union or other protected concerted activities;
(2) did Respondent, through its agent, Ronald Courser,
about March 16, promise economic benefits and other
benefits to employees if they refrained from becoming or
remaining members of the Union , or otherwise assisting or
supporting the Union and; (3 ) did Respondent through its
vice president , Frederick Hitchcock , about May 2, threaten
employees 2 with economic reprisals if the Union won the
forthcoming election?
B. Courser and His Alleged Illegal Promises to
Pavich and Harley Hasel, On or About March 16
A union meeting was held about March 13. Beginning
then, and for some time thereafter, various of Respon-
dent's employees signed authorization cards. Pavich
distributed a few in the shop.
About a week later, around 10 a.m., Courser, Pavich, and
Hasel had a conversation in the shop, apparently during a
coffeebreak. Courier had been service manager since early
in January.
I credit Courter's3 testimony that as service manager at
other dealerships, he had taken mechanics on fishing trips
on various occasions. I further credit his testimony that in
the conversation above referred to, no one made any
1 His demeanor impressed me most favorably
202 NLRB No. 110
LEON AMES FORD 817
mention of a union or unions. Courter did mention that at
some time he and the mechanics might go on a boat trip.
He did not tell them that if the Union came in they would
lose money He knew nothing about the Union at the time
of the conversation.
The testimony of Pavich and Hasel as to what was said
at this meeting was not , at all, in harmony . In some
material instances, they flatly contradicted each other.
According to Pavich, Courter started the conversation by
saying he was very disappointed with the mechanics for
not bringing their problems to him "rather than going to
the Union." Allegedly, Pavich replied the problems had
existed since Courter began working. Again, allegedly,
Courter replied he'd like to be friends with the mechanics
and would be happy to take them out on a 3-day weekend
for fishing on Pavich's boat, Courter buying the gas and
beer if they could work it out between the mechanics
"rather than us go to the union." Allegedly, Pavich and
Hasel continued to complain that everything had been
getting worse. They said the free beer would be great.
Courter allegedly told them he'd try to get their vacation
back to where it had been. Allegedly, according to Pavich,
Courter stated that if the Union came in, the employees
would lose money, they would have to pay union dues, and
they would be on an hourly rate with a guarantee , and they
would not be allowed to work as many hours.
Harley Hasel, an exemployee of Respondent, testified
about this conversation of March 16.4 Many of the
statements imputed to Courter by Pavich were not
mentioned by Hasel in his testimony. He testified that in
this conversation, Courter reminded him his stall was
getting dirty. When asked to state what was said by the
parties, Hasel testified "It's been a while," indicating to me
that his recollection was not strong and clear . He testified
Courter, Pavich, and he discussed things which should be
repaired or fixed, dirty stalls or areas and things the
employees needed Courser allegedly said things couldn't
be repaired until the people in the shop had taken care of
their union problems. Courter allegedly said he would be
more than happy to be friends with them, adding that they
could operate better if they were friends . He then said,
"After we settled these little Union differences then he'd be
more than happy to sponsor a fishing trip in the shop."
Allegedly he added he was very displeased that they had
gone to the Union, "and we hadn't been able to get
anything done the other way."
Trial Examiner's Exhibit 2 contains what Hasel swore
was the truth.5 In it, Hasel discusses the March 16 incident.
He stated in the exhibit that Courter said "he couldn't
resolve problems til the Union was finished with and that
he was told not to talk to us about any of the problems." In
the memo adopted by Hasel, Courter is also quoted as
saying he would like to sponsor a fishing trip for the men.
4 I find it strange that General Counsel never obtained an affidavit from
Hasel He came from Colorado a few days before the hearing, to testify He
previously had been interviewed through long distance phone call, by a field
examiner of Region 31 , who reduced the interview to writing It was shown
to Hasel shortly before he testified and he then "adopted" it It was dated
June 13 Why he was not personally interviewed by a Board agent from
Denver , or elsewhere , and an affidavit obtained together with an estimate of
the credibility of his story is unknown to me , and contrary to procedure of
General Counsel , as I have known it since 1948 I note that the complaint
herein issued 3 days after this phone conversation , when no one had
The memo continues , "Pavich said he was working on his
boat and Courter said he'd like to sponsor a trip for the
men when the Union thing was resolved. "6 (Emphasis
added .) The memo quotes Hasel as saying he wasn't sure
what was said after that.
After General Counsel rested , I recalled Hasel as a
witness He was asked directly if in this conversation,
Courter said, "he'd buy the gas for Pavich's boat if all the
mechanics wanted to go fishing ."7 He answered only that
Courter "said something about fishing ." He added, "I was
busy getting ready to go back to work," indicating to me
that he was not paying much attention to anything Courter
was saying I then asked him to answer "Yes or No"
whether Courter told him and Pavich that he'd buy gas for
Pavich 's boat if all the mechanics wanted to go fishing. He
didn ' t answer "Yes or No" but rather , " I believe so, yes,"
thereby indicating some uncertainty to me . It appears from
Hasel 's testimony at this point , that he was not too much of
a participant, either as speaker or hearer , in this March 16
conversation . I have noted his earlier somewhat detailed
narration of what was said in the conversation . However,
later he testified , "For the biggest part of the conversation
I was busy walking back and forth between my tool box
getting ready to go back to work."
There is nothing in Pavich 's testimony to suggest that
Hasel was not a full participant in the March 16
conversation . The record reflects that mostly it was not
what Pavich said, but what "we" said to Courter, according
to Pavich , obviously referring to Hasel and himself. There
is nothing in Hasel 's testimony when called by General
Counsel to suggest that Hasel did not hear and participate
fully and actively in the entire conversation . It was only
when I called him to testify about the conversation , that he
attempted to describe himself as one who was mostly there,
around the fringes
I asked Hasel repeatedly if Courter had not told him and
Pavich that they "should not vote the Union in." His first
answer was that he didn't "remember." Then he stated he
couldn't say "Yes or No " He then testified that he didn't
recall Courter ever making such a statement . He then
agreed that Pavich, Courter, and he were "together." He
was within 10 feet of Pavich and Courter , at all times.
Having noted Hasel's refusal to testify that in this
conversation, Courter told Pavich or Hasel or both that
they should "not vote the Union in," I direct my attention
to the last sentence of the last paragraph of page 1 of the
Trial Examiner's Exhibit 1. This was a typed statement
given by Pavich to a union representative shortly after his
discharge , and before the filing of the original charge
herein. In this paragraph, Pavich devoted but two sentences
to this March 16 conversation . The whole statement by
Pavich therein as to the March 16 conversation reads,
"Ron Corder [sic ] spoke to Harley Hosel [sic ] and myself a
interviewed him face to face Of the approximately 25 employees in the
bargaining unit, only Pavich and Hasel testified in support of any alleged
unfair labor practices
5 Hasel was in Pavich's house when Counsel for General Counsel
interviewed Pavich 2 nights before the hearing He "listened quite a bit"
6 Note there was nothing said by Courser that such trip would in any way
depend upon the outcome of the election
7 He was present when Pavich testified The quotation is from TX Exh
1. Pavich' statement to a union representative
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week after the meeting and said that he would buy the gas
to my boat if all the mechanics wanted to go fishing. He
had been talking to us that we should not vote the Union in."
(Emphasis supplied.)
In the Trial Examiner's Exhibit 2, adopted by Hasel as
true, about 2 days before the hearing herein, Hasel quotes
Courter as saying to him and Pavich, "he'd like to sponsor
a trip for the men when the union thing was resolved."
(Emphasis supplied.) Hasel adopted this exhibit as true
when, or about when, he did a lot of "listening" to counsel
for General Counsel interviewing Pavich in preparation for
this hearing.8 At this hearing, Pavich swore Courter told
them he'd want to sponsor such a trip, "before the union
election." He denied that Courter told them "he'd like to
sponsor a trip for the men when the union thing was
resolved "
I find the respective testimonies of Pavich and Hasel to
be in such fundamental and material conflict that I can
credit them neither when their testimonies are considered
in combination nor independently. Since there are other
alleged violations to be considered by me herein, I shall not
now comment on their respective demeanors.
I here find and conclude that General Counsel has not
proved paragraph 8(a) of the complaint by a preponder-
ance of the probative and substantial evidence. I cannot
ignore Hasel's prior statement that Courter told Pavich and
him that he couldn't resolve problems until "the Union was
finished with" and that he was told not to talk to the men
about any of the problems-.9 Compare this with Pavich's
recital of a variety of problems Courter allegedly told them
he'd try to have straightened out, vacations, mops, etc.
Pavich's short paragraph in the Trial Examiner's Exhibit 1
was certainly greatly magnified and expanded in his
testimony, given long after he gave his statement to the
Union.1° I have noted that in such statement all that
Courter was supposed to have said about fishing was that
Courter said to Hasel and Pavich he'd buy gas for Pavich's
boat if all the mechanics wanted to go fishing." There is
obviously nothing violative of the Act in such statement by
Courter. Pavich's only further statement that "[Courter]
had been talking to us that we should not vote the Union
in," was substantially denied by Hasel Such testimonies do
not permit me to find that General Counsel has proved this
part of his case by a preponderance of the probative and
substantial evidence I do not credit the testimony of either
Pavich or Hasel as to the March 16 conversation, except to
the extent that such testimony is corroborated by Courter.
C. Hitchcock's Alleged Unlawful Threat to Hasel
on May 2
In paragraph 8(b) of the complaint , it was alleged, "On
or about May 2, 1972, Respondent , through Frederick
8 In years past it was not customary for agents of General Counsel to
interview prospective witnesses in groups
9 Hasel confirmed this in his testimony
10 It is probably only speculation, but I find it strange indeed that the
Union waited weeks after it obtained Pavich's statement before it filed a
charge and that , though losing the election , it filed no exceptions , even ones
involving Pavich
i i Nothing in that sentence about a Union
12 Of course, there can be typographical errors, or inadvertent slips
11 The election was May 17
Hitchcock, at its place of business, threatened an employee
with economic reprisals if the Union won the election."
(Emphasis supplied.) The record makes clear that the
employee referred to therein was Hasel. I would not
demean General Counsel or the Board's Region 31, by
finding they do not know how to state exactly what they
mean when a complaint is issued . 12 I am satisfied that on
June 16, General Counsel intended to prove just what he
alleged in paragraph 8(b). It is a simple and clear statement
of facts. If General Counsel had intended to prove that
Hitchcock threatened an employee (Hasel) that other
employees or employees in general would suffer economic
reprisals if the Union won the election, he would so have
alleged. He did not. I know he was not trying to mislead
Respondent as to the facts involved in paragraph 8(b).
Respondent had every right to believe that General
Counsel meant just what he alleged in paragraph 8(b).
As I noted, Hasel was the employee involved in the
conversation with Hitchcock on May 2. He testified about
events with Courter on May 1, and a conversation he had
with Hitchcock, in Courter's presence, on May 2, about his
demand for more pay or a better paying job and his
announced determination to quit in a week if he didn't get
what he wanted.13
I asked Hasel pointedly and directly whether in this
conversation Hitchcock threatened him with economic
reprisals if the Union won the election 14 Hasel's simple
answer was, "He didn't threaten me because I had already
made up my mind I was leaving ." He again denied that
Hitchcock threatened him with any economic reprisal if
the Union won the election.15 He was the employee
allegedly threatened with economic reprisals but he denied
it flatly. At the time Hitchcock allegedly said he'd "flood
the shop," Hasel had already made up his mind he was
quitting and had so advised Hitchcock, in the presence of
Courter. The fact is that he absolutely and unequivocally
denied the allegations of paragraph 8(b). It was with the
record in this condition, an absolute denial of the facts
alleged in paragraph 8(b), by Hasel , the individual
involved, that General Counsel rested. Counsel for General
Counsel made no effort of any kind to move to amend the
facts as alleged in paragraph 8(b).I6
It was I and not Respondent, who went into the
questions with Hitchcock about his allegedly loading up
the shop with employees, if the Union won the election, so
that employees would leave, etc. Hitchcock denied it, but it
was not a matter Respondent considered in issue, as raised by
the pleadings At least, Respondent's counsel did not
initiate this denial or litigation , as part of his case. In
answer to my questions along this line there were firm,
unequivocal denials by Hitchcock.i7
14 As the complaint clearly alleged
15 He had testified that Hitchcock had told him , after he said he was
quitting, not to worry about the Union because if the Union came in,
"they'd hire so many mechanics that other mechanics couldn't make any
money, and they'd just flood the shop"
is Tr p 104 Bear in mind that Hasel was not denying conclusions of
law, but facts as alleged
17 Which I completely credit I here note I credit Courser's corroborating
denials More on Hitchcock's alleged threats of May 2, infra
LEON AMES FORD
I, having opened this matter up during Respondent's
case, Respondent 's counsel queried Courter about it.18
It was not until Respondent had almost completely
finished his case in answer to that of General Counsel that
I inferred, at least, to Counsel for General Counsel, that
there might be a question as to whether he had proved
paragraph 8(b) of the complaint.i9 It was only then that
Counsel for General Counsel moved to amend paragraph
8(b) of the complaint . Respondent objected to such motion
"at this late stage of the game." General Counsel wanted to
amend the complaint to conform to the proof. He should
have known what his proof would be before this case ever
started. If paragraph 8(b) didn't properly allege the facts
Respondent was supposed to contest, it should have been
amended prior to the hearing so that Respondent would
know what General Counsel alleged the facts actually
were. The business about flooding the place with employ-
ees if the Union were to win the election was far different
from threatening Hasel with "economic reprisals," because
Hasel made it abundantly clear to Hitchcock and Courter
that if he didn't get much improved working conditions, he
was "quitting" well before the election . I repeat , I won't
demean General Counsel by even considering that his
responsible officers cannot simply and accurately state
facts in a complaint so as to apprise a Respondent what he
is charged with. General Counsel's officers could not have
drafted paragraph 8(b) so simply and directly as they did
and yet have meant to apprise Respondent that on May 2,
Hitchcock threatened Hasel that if the Union won the
election other employees orJust employees other than Hasel,
would receive economic reprisals If this is what had been
meant this is what would have been alleged . Such officers
can draft simple declarative sentences. It was not until the
case was almost closed, that counsel for General Counsel
moved to amend paragraph 8(b) so that it would read that
Hitchcock "Threatened employees that they would receive
economic reprisals if the Union won the election." Note
that by this time, counsel for Respondent had concluded
his direct examination of his last witness. I granted the
motion to amend , believing that, in any event , the matter
had been fully litigated . I was not then conscious, as I now
am, that it was not Respondent who chose originally to
litigate what had not originally or even then been pleaded,
but 1. I now am not free from doubt that I properly
exercised my discretion in permitting so grossly late an
amendment to the complaint . Certainly after Hasel's in
haec verba denial of every "fact" alleged in paragraph 8(b)
and after all Hasel 's testimony , counsel for General
Counsel might properly then have moved to amend
paragraph 8(b) of the complaint. General Counsel, believ-
ing the transcript may be in error , 20 moves in his brief to
amend paragraph 8(b) so as to read that Respondent
threatened an employee that employees would receive
economic reprisals if the Union won the election . General
Counsel had the ability so to amend before the hearing, or
at least after Hasel's testimony. I consider this to be merely
a refinement of the motion granted at the hearing, a
1H t, as judge , placed it in litigation In retrospect , I think I was in error
19 Tr p 199
20 1 find it is not
21 Before it was so lately amended
22 Respondent had ignored it entirely when questioning Hitchcock
819
clarification . It is accepted by me as such . I have no doubt
that Respondent , as well as I, understood this to be the
substance of the original motion . This does not change the
fact that I am not free from doubt as to whether I abused
my discretion in granting the so late motion, in the
circumstances of this case . If the motion should not have
been granted then , especially in light of Hasel 's unambigu-
ous testimony, counsel for General Counsel failed to prove
paragraph 8(b) of the complamt.2i
The fact is that whether because of my error in opening
up the issue22 when Respondent was presenting its case, or
not, paragraph 8(b), as amended , was fully litigated and I
shall make findings and conclusions on the merits of the
amended paragraph 8(b).
My findings here are based upon the credited testimonies
of Courter and Hitchcock as to what was said at the May 2
meeting, in part corroborated by Hasel. I find part of
Hasel's testimony as to May 2 to be absurd, made out of
whole cloth and unworthy of any credit, particularly the
part referring to paragraph 8(b) as amended.
On May 1, Hasel and Courser visited a cocktail lounge
together. Hasel testified he had already given Courter a
week's notice that he was going to leave the employment of
Respondent and Courter did not want him to leave.23
While Courter told him he really didn't want Hasel to
leave, Hasel testified he had "pretty well made up [his]
mind that [he] was going to go." Hasel testified that in the
lounge, he stated he was displeased with the shop and the
fact that he couldn ' t receive more money and he was ready
to leave. He stated how much more money he would have
to receive for him to stay. Courter allegedly said he'd find
out if it were all right with Hitchcock. The next morning
Courter gave him no answer. In the afternoon, May 2,
Hasel went to Hitchcock 's office . Courter went in with
him. They discussed "the fact" that Hasel was leaving,
according to Hasel . Hasel testified he told them he wasn't
happy with the amount of money he was paid and
explained why he thought he should receive more. He
asked for another job which would pay more money 24 It
was explained to him , according to Hasel, that nothing
could be done for him, while the election was pending.
Hasel testified he then said , " I told them if the Union was
going to come in I wasn't going to stay anyway because I
worked in a Union shop and I didn't like it, and Fritz
[Hitchcock] told me not to worry about the Union, and if
the Union would get in , they'd hire so many mechanics
that other mechanics couldn't make any money,25 and
they'd dust flood the shop " I completely credit the denials
of Hitchcock and Courter that Hitchcock so spoke, in
words, or substance. It would be a foolish and absurd
statement to make to an admittedly antiunion employee
whose continued services were desired by Respondent 26
Such a statement would only make an employee who
23 Hasel ran the so-called diagnostic clinic and earned about $8,000 a
year
24 1 find he also asked for a "demonstrator " for his own use
25 Presumably including Hasel , if he stayed
26 The election was 2 weeks away
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted to quit because he wasn 't making enough money,
in his opinion, more determined to quit 27 Hasel would
have me believe that Hitchcock told an antiunion employee
who wanted more money and whose continued services
Respondent desired, that if the Union won the election,
some 2 weeks off, that he would make less money.
Assuming, arguendo, that Hitchcock were antiunion he
would more probably have made an effort, with placating
statements or such, to have kept the antiunion Hasel in his
employ at least until election day.28 I observed Hitchcock
He impressed me as a man of such knowledge and
commonsense that he would never make such a statement
to any employee, and certainly not to one who was
antiunion and thereby assure his departure about a week
before the union election.29
.Hasel further testified and made it clear that "probably
the first thing" he said in Hitchcock's office was that he
was going to quit or leave if he didn't get another job or
make more money. Hitchcock told him he was sorry he
couldn't give him anotherjob or money. Hasel then made it
clear he was going to quit. I do not for a moment credit
Hasel 's testimony that after Hitchcock knew Hasel was
going to quit, and that he was antiunion, and that he wasn't
going to be an employee at the time of the upcoming
election, Hitchcock then made the further statements about
flooding the shop with mechanics if the Union won the
election. Such would be pointless. I was very skeptical of
this testimony when given, but, having studied the
transcript and the briefs, and having fully credited the
denials of Courter and Hitchcock, I here find it to be
unworthy of any credit.
I conclude that General Counsel has failed to establish
the truth of paragraph 8(b) of the complaint, as amended,
by a preponderance of the probative and substantial
evidence.
D. The Alleged Unlawful Discharge of Pavich
I first note that I find a lack of preponderating probative
and substantial evidence that Hitchcock was aware of any
union activities of Pavich or any other employee, when
Pavich was discharged on the morning of March 22.30 I
recognize that Respondent's was a "small shop," but,
having fully considered that, I still do not find sufficient
evidence of knowledge of such union activity as there may
have been. I am aware that the discharge was only 9 days
after the union meeting and that Pavich distributed, as well
as signed, some union cards.31 I still do not find
preponderating probative and substantial evidence of
company knowledge of Pavich's comparatively slight
union activities. I have already found that I credit neither
Pavich nor Hasel at all as to alleged antiunion statements
of Courter. I have given no credit to the testimony of Hasel
as to alleged antiunion statements of Hitchcock. The
demeanors of both Pavich and Hasel impressed me very
27 Obviously, the Union could win
28 Hasel wanted thejob of "tune-up man" which, according to him, paid
$22,000 per year
29 Hasel quit about May 9, 8 days before the election
SO He was unaware of any union activity in the shop until the afternoon
of March 22
11 No evidence of company knowledge
unfavorably and I credit the testimony of neither, unless
corroborated by otherwise credited testimony. I find no
credible evidence that either Courter or Hitchcock ever
directly or indirectly mentioned the Union in any adverse
way to any employee and particularly to Pavich or Hasel.
I recognize that the reason given by Hitchcock for
Pavich's discharge, his tardiness, had gone on for months,
certainly, at times, at least, with Respondent's approval.
This does not prove knowledge of Pavich's union activities.
Further, the record is devoid of credible evidence that
anyone connected with Respondent had union animus.
Pavich worked for Respondent for a few months in 1969.
He renewed his employment about July 1971, and it
continued until his discharge by Hitchcock on March 22.
He was a line mechanic. There is no doubt that the
established working hours for mechanics were 8 a.m. until 5
p in. Not long after Pavich began his employment in 1971,
Courter's predecessor as service manager, Robert Webb,
gave Pavich permission to come to work about 9 a.m. and
work later than the other employees, because Pavich had
trouble getting a babysitter for his 3-year-old twins who
would make it possible for him to get to work at the
scheduled 8 a.m. Webb was discharged early in 1972
Courter replaced him on January 5. When Webb gave
Pavich this permission, as Webb testified, Pavich assured
Webb he was going to straighten out his babysitting
problems so that he could come to work on time.32 As the
discharged Webb testified, "It's important that everybody
be to work on time." Pavich, however, came to work at 9
o'clock or later with considerable regularity.
Although I carefully listened to and observed Pavich,
and have diligently studied the record, I am still somewhat
confused as to the history of the line of babysitters, as
given by Pavich He had a series of them, some who made
it impossible for him to get to work by 8 a.m., and at least
one who made such possible.
In January, Courter, having been told by Pavich of his
arrangements with Webb, continued them, at least on a
"temporary" basis. In fact, for a month before Pavich was
fired for arriving late to work, Pavich had "a real good
baby sitter." He could have been to work on time, not
having a babysitter problem, but did not-he just kept
coming to work late even though he had no babysitter
problem. So far as the record is concerned, he was unique
in being permitted to arrive late because of a babysitting or
any other problem. When the time came that he no longer
had the problem for which an "exception" was made for
him, he never advised anyone in management that there
was no reason why he should not perform as the other
employees were required to perform. He knew it was
company policy to start at 8 a.m.33 He felt no requirement
to report to management that his babysitting problem was
solved and he could be considered the same as all the other
employees. While this might be some indicium of his
personality and character, it is not material to the
12 Most of the customers who want their cars repaired "come in early in
the morning "
33 If he ever had a doubt about this , and I find he had none, it was
certainly eliminated by the February 17 meeting and the typed form of
Respondent's requirements made available to all the employees on the same
date I find Pavich was not honest when pretending ignorance of this form,
Resp Exh 2
LEON AMES FORD
discharge issue. He was not discharged because he
concealed a change in his status which had occasioned
some special privilege for him. I base no findings upon his
apparent deceit in this regard.
Before March 22, Hitchcock had learned from Courter
that Pavich arrived late for work with some regularity.
Courter was told by Hitchcock to "handle" the situation.
About a month before Pavich was discharged Respondent,
through Courter, began to advertise for another line
mechanic. I consider it immaterial whether Courter did or
did not do a good job in "handling" the situation.
The fact is that on March 20, Hitchcock wrote a letter
addressed to Pavich, stating he was aware that Pavich had
been habitually tardy "since the first of the year."34 Pavich
was told in the letter the hours were from 8 to 5. Hitchcock
concluded, by writing, "We expect you to conform to these
hours " I completely credit Hitchcock's testimony that he
prepared, signed, and mailed the letter. Pavich testified he
didn't receive it until March 24. Mail service being what I
have sometimes observed it to be these days, such
testimony may well be true. Obviously he received it in an
envelope. Such would most probably have had a date
stamp. Pavich didn't know what happened to the envelope.
I consider date of the letter's receipt to be unimportant.
What is important is that on March 20 Hitchcock, without
regard to what Webb or Courter may have tacitly or
otherwise have permitted with respect to Pavich's hours of
work, expected Pavich to comply with the work hours
Respondent had established for all similar employees.
Hitchcock thought he was making this abundantly plain to
Pavich in his letter.35
Pavich testified he was fired by Hitchcock, in the service
area, about 9:00 or 9:15 a.m. Pavich had again come in
late.36 Hitchcock saw him and asked him if those were the
regular hours he came to work. Pavich testified he told
Hitchcock he "had an arrangement" where he could come
to work about 9 and work until the job was done.37 This
day, he came to work not at 9 but at 9:15. Pavich quoted
Hitchcock as saying he and not Courier was Pavich's boss
and he had never made such an arrangement. Hitchcock
continued, saying the shop hours were 8 to 5 and Pavich
had to be there at 8. His testimony as to his variety of
babysitting problems was confused and consisted, I find, of
much guesswork, if not improvisation. He plainly could
have been at work at 8 a.m. for a month before March 22.
Pavich continued testifying, after stating Hitchcock told
him the hours were 8 to 5. I can't find from his testimony
whether he or Hitchcock said he would have to get a new
babysitter and work out other arrangements . According to
Pavich either he or Hitchcock said, "I am sorry." Pavich
testified Hitchcock then turned to walk away and then said
to Pavich "just forget it. Pack up your tools and get out.
You are fired." Pavich allegedly replied, "Yes sir. Thank
you." 38
34 In fact, he was tardy for much longer
31 Pavich was already fully familiar with this company policy
as After Courter became service manager, Pavich testified he arrived at
work after 9, "a few times " He couldn't "remember" whether Courter had
ever found fault with him for such lateness
37 Notably, Pavich did not confess that the basis for any such
arrangement had not existed for a month
18 1 find that as of the time of Pavich's discharge, Respondent had no
821
Thus is Pavich's story of his discharge. Hitchcock's did
not vary in substance from that of Pavich. He fired Pavich
because Pavich came to work late on March 22.39 He had
been allowing Courter leeway to straighten out the Pavich
problem. It was not until about an hour and a half after
Pavich's discharge that Hitchcock first learned anything
about Pavich having babysitter problems. He knew only
that Pavich had not been coming to work on time, on a
consistent basis. Hitchcock knew of no "arrangement"
Pavich may have had with either Webb or Courter. On
March 22, after the March 20 letter, Hitchcock not only
saw Pavich arrive late, about 9:15, but Pavich arrived in a
customer's car. Hitchcock soon realized Pavich had not
been giving it a road test. However, he soon discovered
Pavich had permission to use the car. He asked Pavich if he
were just arriving at work and Pavich said, "Yes."
Hitchcock told him such could not continue and Pavich
should pack his tools and leave. An hour and a half later,
Pavich told Hitchcock of an agreement with Webb.
Hitchcock replied that Courter had been service manager
since January 5 and working hours were 8 to 5. Hitchcock
had not previously warned Pavich of discharge, nor had
anyone else.
I find it in no way unreasonable that Hitchcock, after
writing the March 20 letter, discharged Pavich for coming
to work at 9:15 on March 22. Whether this was the actual
cause of discharge is immaterial .40 Having considered the
entire record, it appears to me it was. In any event, I find
and conclude that counsel for General Counsel has failed
to establish by a preponderance of the probative and
substantial evidence that on March 22, Respondent
discharged Pavich because he joined or assisted the Union
or because he engaged in other protected concerted
activities, as alleged in the complaint. There is no credible
evidence that Respondent at the time of Pavich's discharge
had any knowledge of any union activity in the shop, or
possessed any union animus.
Concluding Findings
I conclude, based upon the entire record, including the
briefs of the General Counsel and Respondent, that
General Counsel has failed to prove any of the violations
alleged in the complaint by a preponderance of the
probative and substantial evidence.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following conclusions of
law:
1. At all material times Respondent has been an
employer engaged in commerce within the meaning of the
Act.
knowledge of any union activity in the shop
39 Ads had been placed in the papers for a replacement for Pavich about
a month earlier This was not only because of his tardiness but also because
the quality of his work was not up to standard so far as Hitchcock was
concerned He had received a variety of complaints
40 Respondent could have discharged him for any reason not forbidden
by the Act
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the
meaning of the Act.
3. The record does not establish that Respondent has
engaged in any unfair labor practices as alleged in the
complaint.
41 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
I, therefore, recommend the following:
ORDER41
The complaint herein is dismissed.
l02 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes