Marin Dodge, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1973

206 N.L.R.B. 370 (N.L.R.B. 1973)

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marin Dodge, Inc.; Francisco Dodge Center , Inc. and
Nick Shmatovich
Marin County Lodge No. 238 International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO and Nick Shmatovich . Cases 20-CA-7585 and
20-CB-2687
October 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent Employer, Marin Dodge,
Inc.; Francisco Dodge Center , Inc., San Rafael, Cali-
fornia, its officers , agents, successors , and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
On May 31, 1973, Administrative Law Judge Mar-
tin S . Bennett issued the attached Decision in this
proceeding . Thereafter , the General Counsel and Re-
spondent Employer filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
MARTIN S. BENNETT, Administrative Law Judge: This mat-
ter was heard at San Francisco , California, on April 3, 4,
and 5 , 1973. The amended complaints, issued March 28,
1973, and based upon charges filed by Nick Shmatovich, an
individual , on June 27, 1972 , and March 27, 1973 , allege
that Respondent Employer, Marin Dodge , Inc., herein Ma-
rin, and Francisco Dodge Center, Inc., herein Francisco,
has engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act, and that Respondent
Union, Marin County Lodge No. 238, International Associ-
ation of Machinists and Aerospace Workers, AFL-CIO,
has engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act . Briefs have been submitted by
the General Counsel and Respondents.
Upon the entire record in the case, and from my observa-
tion of the witnesses, I make the following:
ORDER
Pursuant to Section 10(c),of the National Labor
Relations Act, as amended , the National Labor Rela-
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
i The meeting referred to in sec. III, D, (8), of the Administrative Law
Judge's Decision actually took place on February 10 rather than February
20 as stated.
The Respondent Employer and General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an Administrative Law Judge 's resolutions
with respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd . 188 F 2d 362 (C.A. 3, 1951 ). We have
carefully examined the record and find no basis for reversing his findings
2 in its exceptions the Respondent Employer contends that this Board
should defer to the decision reached by the Board of Adjustment pursuant
to the contract between it and the Respondent Union . The Administrative
Law Judge refused to defer on the ground that the unfair labor practice
aspects of the case were not presented to that board . We also note that while
the evidence as to the 8 (b)(1) allegations of the complaint was not deemed
sufficient by the Administrative Law Judge to support a finding of a violation
of the Union's duty fairly to represent the Charging Party, there is nonethe-
less evidence of some friction and animosity between the Union and the
Charging Party, arising in part out of past differences and in part out of some
foot-dragging by the Union in pursuing Shmatovich 's grievance , a reluctance
by the Union to make full and free disclosure to the grievant of the
Employer's letter detailing the reasons for his termination , a misunderstand-
ing, at the very least, between Shmatovich and the business agent concerning
the matter of subpenas for witnessess ; and other circumstances which cast
serious doubt as to whether Shmatovich 's and the Union's interests were fully
aligned and even cast some shadow over the fairness of the proceeding.
Under all of these circumstances , we are not persuaded that it would effectu-
ate the policies of the Act for us to rest content with the results of the
arbitration proceeding here , and we are of the view that this is an appropriate
case for the exercise of our jurisdiction
Marin Dodge , Inc., a California corporation , was en-
gaged in the retail sale and repair of new and used cars at
San Rafael , California, until January 1, 1973 . On that date,
Francisco Dodge Center, Inc., a Delaware corporation, as-
sumed that business with identical equipment and person-
nel at the same location . It is undisputed , and I find, that
Francisco is a successor to Marin.
During the calendar year 1972, Mann enjoyed gross reve-
nues in excess of $500,000 and received goods and supplies
valued in excess of $50 ,000 directly from suppliers located
outside the State of California. From January 1 through
February 28, 1973, Francisco enjoyed gross revenues in the
amount of $485,412, which project in excess of $500,000 per
annum . During the same period, it purchased and received
goods and supplies valued in excess of $10,000 directly from
suppliers located outside the State of California, which pro-
ject in excess of $50,000 per annum . I find that the opera-
tions of Respondent Employer affect commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Marin County Lodge No. 238, International Association
of Machinists and Aerospace Workers, AFL-CIO, is a la-
206 NLRB No. 87
MARIN DODGE, INC. 371
bor organization within the meaning of Section 2(5) of the
Act.
HL THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues; Background
The General Counsel alleges, in the case against Respon-
dent Employer, that Nick Shmatovich, the charging party,
was discharged on or about January 26, 1972, because of his
union concerted activities, this within the meaning of Sec-
tion 8(a)(3) and (1) of the Act. In the case against Respon-
dent Union, it is alleged that the latter did not thereafter
fulfill its duty of fair representation in processing a griev-
ance resulting from the discharge of Shmatovich, this within
the meaning of Section 8(b)(1)(A) of the Act.
It is deemed in order to set forth at this point certain
language in the current contract between Respondent Em-
ployer as a member of Marin County Motor Car Dealers,
Independent Garage Owners and Parts Houses, and Re-
spondent Union covering mechanics working at the time
material herein. The arbitration clause in that agreement
provides that any differences not previously adjusted are to
be referred to the business representative of the Union and
the Employer for adjustment. All complaints relating to
dismissals must be filed with the Employer in writing within
10 working days. If a settlement is not reached within 5
working days, the matter is then submitted to a board of
adjustment. The latter consists of two members appointed
by the Employer and two members appointed by the Union.
If a majority of these appointees do not agree upon a settle-
ment within 5 working days, a neutral chairman is then
selected by the four members and these five constitute a
board of arbitration with final and binding authority.
As treated below, the discharge of Nick Shmatovich was
heard by a four-man board of adjustment and unanimously
resolved adversely to him. Under Spielberg Manufacturing
Company, 112 NLRB 1080, the Board will defer to an
arbitrator's award under certain specified circumstances.
The General Counsel has directed attention to an added
criterion, much in point with the instant problem, where the
court approved a holding that the Board may look behind
an award when the arbitrator did not treat with the alleged
unfair labor practice aspects of the case or where they were
not presented to him. John Klann Moving and Trucking Com-
pany v. N.L.R.B., 411 F.2d 261 (C.A. 6, 1969), cert. denied
396 U.S. 833 (1969).
B. The Case Against Respondent Employer
Nick Shmatovich was hired as a journeyman mechanic by
Marin in September 1969 at the prevailing union scale.
Shortly thereafter, either in January or February 1970, he
was granted an increase of 15 cents per hour above union
scale, this due to his superior ability. It is undenied that at
the time of his discharge that he was the only mechanic
enjoying wages above union scale. Indeed, a witness for
Respondent Union herein, and also a union appointee to
the board of adjustment, Richard Gommeringer, testified
that it is rare for one to be paid over union scale and that
this generally stems from superior ability as a mechanic.
According to Shmatovich's uncontroverted testimony,
and I so find, he was active in the affairs of Respondent
Union. He was elected as president of the local in February
1971 and served in that capacity until approximately 2
weeks before his discharge on January 26, 1972. It would
seem that the catalyst that precipitated his discharge was the
hire of a new service manager by management, one Darrell
Abernathy, in December 1971; the latter was the immediate
supervisor of Shmatovich.
The General Counsel relies herein upon a number of
incidents involving Shmatovich and Abernathy, directly or
indirectly, which, it is urged, constitute Section 7 protected
activities. These allegedly were the true factors motivating
Respondent in the discharge of Shmatovich on January 26,
1972; on that date, a towel rack was torn from the wall in
the men's room by Shmatovich, deliberately or unavoidably
according to the parties, and the General Counsel alleges
that this was seized upon by Abernathy as a pretext for
ousting Shmatovich from the shop.
Shmatovich, on this record, and as he appeared before
me, was manifestly an outspoken person, but this does not
detract from his protected status under Section 7 of the Act
if he has engaged in activities thereunder. The following
incidents are relied upon by the General Counsel:
(1) As noted, Abernathy was hired as service manager in
December 1971. Later that month, Shmatovich approached
him and complained that a lubrication man, not a member
of the Union but under Teamster jurisdiction, was perform-
ing work in violation of the contract between Respondent
and the Union. Abernathy, according to Shmatovich, re-
plied this was of no concern to the latter. Of direct interest
herein, as well as below, is the claim of Shmatovich that
Shop Steward Clyde Robinson was ineffectual and some-
what unwilling to process matters of this nature.
(2) While not a matter of the greatest moment, the con-
tract between the parties provides that paychecks are to be
delivered prior to 2 p.m. on Friday. According to Shmato-
vich, he went to Abernathy on Friday and complained
about late delivery of the checks. Abernathy allegedly re-
plied that, as the men were paid regularly, there should be
no concern about late paychecks. This practice of late pay-
checks allegedly continued regularly until the time of the
discharge of Shmatovich. Abernathy admittedly was aware
of the complaint; he claimed that on one such occasion the
checks were distributed at 2:05 p.m.
(3) According to the uncontroverted testimony of Shma-
tovich, and I so find, at the beginning of January 1972, he
was off sick for 5 days. The contract provides that after 2
days of illness, absent hospitalization, one is entitled to sick
pay up to 5 days. Upon his return, Shmatovich asked Aber-
nathy about his sick-pay check and the latter replied that he
would take care of it. One day later, Shmatovich repeated
his inquiry. Abernathy responded that he had not gotten
around to the matter; Shmatovich had not been at work,
and that there was no reason for him to be paid. Shmatovich
thereafter displayed the sick leave provisions of the contract
to Abernathy and insisted that he had this sum coming.
Abernathy was visibly upset, stated that he would look into
the matter, and, that Friday, Shmatovich received his sick-
pay check; this was about 2 weeks prior to his discharge.
(4) On Monday, January 24, Shmatovich went to Aber-
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nathy with another grievance. Employee Ron Davis had
worked on Sunday, January 16, allegedly installing smog
control devices; that Davis had mentioned this to Shmato-
vich is uncontroverted. The basis of the Shmatovich gripe
was that the contract provided that all overtime work was
to be distributed equally to all members of the shop with
double time for Sunday work, and this was not being done.
Abernathy denied that Davis worked on Sundays, but con-
ceded that this was possible. He claimed that, because of the
distance he l1ved from the shop, he never visited it on Sun-
day. But a General Counsel's exhibit denotes that a car
registered to Abernathy received a smog control device
from Davis on Sunday, January 16)
(5) According to Shmatovich, he also complained on the
foregoing occasion that Respondent was violating a section
of the contract in that overtime work was given to only one
of the three members of the body shop, rather than being
spread around; -lie claimed that this had_been put to him by
the other two men in the body shop and that he duly relayed
this to Abernathy. This, of course, ties in with the evidence
that Shop Steward Robinson was ineffectual or nonopera-
tive in areas as this.
Several days before his discharge, Shmatovich was called
to the office of Len Huston, the owner of Respondent. The
latter, according to the uncontroverted testimony of Shma-
tovich, and I so find, discussed shop problems with him, in
essence the various matters that Shmatovich had previously
raised with Abernathy. That this rankled Abernathy is
shown by his subsequent testimony before the board of
adjustment that Shmatovich, when he believed that some-
thing was wrong in the shop, would go to the men or to
Huston rather than to Abernathy.
Turning to the key incident of January 25, the testimony
of Shmatovich and employee Royce Johnson is in substan-
tial agreement. They were in the upstairs restroom at noon.
There are two towel dispensers on one wall and a third on
another. The latter towel dispenser, for some time, had been
difficult to operate. It is a type which contains a long cloth
towel that,circulatesion two rollers and the clean portion is
exposed when one pulls the towel downward. This particu-
lar dispenser did not function well and it was necessary to
jerk hard on the towel to move it down. Over a period of
time, the four screws which held the dispenser to the wall
had become loose and, as a result, the dispenser sagged from
the wall.
As Johnson put it, he entered the employ of Respondent
approximately I month earlier on December 27 and, as of
that date, the towel dispenser was difficult to operate and
was loose from the wall. On this particular occasion, Shma
tovich pulled on the towel dispenser and it fell from the wall
to the floor. In Johnson's observation, Shmatovich was not
angry or upset at the time.
Abernathy presented a vastly different version of the inci-
dent. He and Shmatovich allegedly met in his office at 4
p.m. that day concerning the manner in which Shmatovich
conducted himself in the shop. Shmatovich, in turn, flatly
denied that such a'meeting took place.
Abernathy claimed that about 30 minutes later, at ap-
1 This, of course , is not inconsistent with Abernathy having left the vehicle
in the shop.
proximately 4:30 p.m., Shop Steward Clyde Robinson in-
formed him that the towel dispenser had been torn from the
wall. Robinson had not seen or heard the incident, but
reported that Shmatovich was the only person remaining
upstairs at the time. Without any investigation, Abernathy
decided to terminate Shmatovich, immediately telephoned
Business Representative Bevan of the Union, and so ad-
vised him. On the morning of January 26, Shmatovich re-
ported for work and was asked by Abernathy if he had torn
off the towel dispenser. Shmatovich denied this, stating that
it had fallen from the wall. Abernathy then stated that he
had had it with Shmatovich and that the latter was fired. He
advanced no other reason, although he stated that Bevan
had an entire file of complaints about Shmatovich.
In a subsequent letter to the Union, Abernathy not only
adverted to the towel dispenser incident, but advanced a
number of other alleged reasons for the discharge. Xis clear,
and I find, however, that, but for the towel dispenser inci-
dent, Shmatovich would not have been discharged on Janu-
ary 26. I credit the testimony of Shmatovich and Johnson
as to the timing of the incident at noon and as to the circum-
stances thereof. Johnson, it may be noted, was the most
neutral of all involved herein. I also find that Shmatovich
had not been in the office of Abernathy prior to the towel
incident.2 Abernathy seized upon the explanation presented
by Robinson and decided forthwith to discharge Shmato-
vich without any investigation and prior to talking with the
man, despite his admitted knowledge that the dispenser rack
was loose.
The record amply demonstrates that Shmatovich was
zealous to safeguard the rights of the men covered by the
contract. He did not fare well with the shop steward whom
he, as well-as others, considered to be ineffectual. While the
subsequent letter to the Union and the later hearing raised
a number of areas of disenchantment with Shmatovich,
none of these had been taken up with him, save for the towel
incident.
The testimony of James Johnson, the predecessor of Ab-
ernathy, contains nothing but praise for the ability of Shma-
tovich and confirms the passiveness of Steward Robinson.
This, of course, is reflected in the fact that Shmatovich was
the only mechanic paid above the union scale and even
Abernathy rated him as a good mechanic. While Shmato-
vich was zealous, and his appearance before me confirms
this, his conduct did not approach a stage of insubordina-
tion which would appropriately render him subject to disci-
pline.
In a postdischarge letter to the Union, Abernathy re-
ferred to Shmatovich as a "chronic instigator." I conclude
on this record that this refers to his insistence that Respon-
dent abide by the terms of the contract. And the towel
incident occurred directly after Shmatovich complained to
Abernathy about the allotment of overtime work and his
talk with the owner, Huston. In addition, I find, according
to the uncontroverted testimony of Royce Johnson, that
immediately after the discharge Abernathy spoke with the
men. He told them that he had just gotten rid of one man
2 Abernathy, no longer with Respondent, was a vague witness whose recol-
lection in a number of areas was most faulty; this was in marked contrast
to his specific testimony before the board of adjustment while he was still in
the -employ of Respondent Employer
MARIN DODGE, INC. 373
he had been wanting to fire since he , Abernathy, came to
the shop, that he could fire any man in the shop, that the
Union would back him up, and that the men would have to
shape up. I find, on a preponderance of the evidence, that
the reason assigned on January 26 for the discharge of
Shmatovich was pretextual. I further find that he was dis-
charged because of his union and concerted activities within
the meaning of Section 8(a)(3) and (1) of the Act.
C. The Board of Adjustment Proceeding
Shmatovich promptly grieved over his discharge under
the contract and the case was heard on February 22, 1972,
by a four-man board of adjustment. What was litigated on
that occasion was, in essence , a six-count statement from
Abernathy as to the reasons for the "disciplinary" termina-
tion of Shmatovich. This is reflected in a letter sent to the
Union after the discharge. The reasons are, in essence, (1)
he did not wish to abide by shop rules despite repeated
warnings and reprimands; (2) he chose to underrate the
service department and voiced low opinions thereof in front
of the public, department heads, and coworkers; (3) he used
profanity at work in the presence of both the public and
coworkers; (4) he could not get along with his coworkers
unless he had the "upper hand" in all decisions and his
attitude toward department heads was insulting; (5) when
reprimanded or asked to do something, he would lose con-
trol of his temper and would throw about objects such as
tools; and (6) the towel dispenser incident, alleging that this
resulted from a temper tantrum , this causing considerable
property damage. Abernathy contended in the letter, as he
did here, that the last incident occurred after a conversation
in his office, at which time Shmatovich stormed out. Aber-
nathy also described him as a chronic instigator who was
forever "riling up" other employees.
As is readily apparent, none of these items were discussed
on January 26 with Shmatovich, except for the towel dis-
penser incident. The board of adjustment unanimously up-
held the discharge. The 37-page transcript of this hearing,
not all testimony , is in evidence and is silent as to any union
or concerted activities on the part of Shmatovich, as hereto-
fore set forth. The testimony was directed substantially to
items other than the towel dispenser which was adverted to
briefly .3
As for the towel dispenser incident, Robinson testified
that he did not see it pulled from the wall, but saw it on the
floor at approximately 4:35 p.m. Abernathy testified about
the extent of the damage to the wall. He asked Shmatovich
about the incident, and the latter allegedly contended that
it fell off when he dried his hands . Robinson testified that
he had seen Shmatovich in Abernathy's office, but his later
testimony is in essence that he was uncertain as to the day.
In Spielberg Manufacturing Company, supra, the Board
indicated that it would defer to an arbitration award where
(1) the proceedings were fair and regular; (2) all parties
3 It is interesting to note that Shop Steward Clyde Robinson, who testified
extensively against Shmatovich at the February 22 hearing, contended that
the predecessor of Abernathy , Jim [Johnson], had trouble with Shmatovich.
This is diametrically contradicted by the testimony of Johnson described
above.
agreed to be bound; and (3) the decision was not repugnant
to the purposes and policies of the Act. The General Coun-
sel has directed attention to John Klann Moving and Truck-
ing Company v. N.L.KB., supra. As noted, the court there
approved a holding that the Board may look behind an
arbitrator's award where the latter did not consider the
specific factor which resulted in the unfair labor practice.
And, in Airco Industrial Gases-Pacific, a Division of Air
Reduction Company, Incorporated 195 NLRB 676, an em-
ployee who was discharged, allegedly for poor work,
claimed that it was based upon his union activity. The dis-
charge was upheld in arbitration, but the Board refused to
defer to the award because the issue of employer discrimina-
tory motive was not resolved in the arbitration. See also
Fleet Distributing Service, Inc., 200 NLRB No. 35.
As set forth, the hearing before the board of adjustment
revolved almost entirely around the allegations about the
poor work of Shmatovich, his temperament, and other hab-
its. I find, therefore, in agreement with the General Counsel,
that the concerted or union activity issues were not litigated
by the parties; the Board, therefore, should not defer to the
decision of the board of adjustment.
D. The Case Against Respondent Union
The General Counsel has alleged that Respondent Union
(1) mishandled the grievance of Shmatovich and (2)
breached its duty of fair representation because of his inter-
nal union activities , all this within 'the meaning of Section
8(b)(1)(A) of the Act.
As an initial premise, it is settled that a labor organization
violates its duty of fair representation when it is guilty of
bad faith in handling a grievance for a member or treats it
in an arbitrary or perfunctory manner. Vaca v. Sipes, 386
U.S. 171 (1967) 4 The General Counsel has also urged the
applicability of Retana v. Local 14, Apartment, Motel, Hotel
and Elevator Operators Union, 453 F.2d 1018, 1023 (C.A. 9,
1972), and Griffin v. United Automobile Workers of America,
469 F.2d 181 (C.A. 4, 1972).
In the former case, the Ninth Circuit decreed that there
was a "broad and demanding" duty to pursue a course of
action that was not unreasonable and arbitrary, indepen-
dently of any hostile motive. And, in the latter case, the
court found fault, without any motive, when a grievance
was pursued with the person who had discharged the griev-
ant.
The General Counsel has adduced in detail the following
evidence in support of his position:
(1) Shmatovich was president of Respondent Union
from February 1971 until approximately 2 weeks prior to his
discharge on January 26, 1972. He claimed that during this
period he clashed with Business Representative Bevan as to
who would chair meetings relating to contract negotiations.
(2) According to Shmatovich, he questioned certain ex-
penses of Bevan incurred on a trip to Montana on union
business for which Bevan produced no receipts . Bevan testi-
fied that he had no recollection of the incident.
(3) Shmatovich allegedly complained to Bevan about
4 Although in that case , the Court found no fault on the part of a labor
organization which decided not to take a grievance to a fifth step of arbitra-
tion.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
late paychecks and the use of the lube man in the shop.
After conferring with Service Manager Abernathy, Bevan,
according to Shmatovich, told him that Abernathy denied
any violation of the contract.
(4) Bevan was tardy in filing the grievance resulting from
the discharge of Shmatovich and allegedly did not do so
until prodded by a letter dated February 4 from an attorney
retained by Shmatovich. This letter is in evidence.
(5) On February 8, Shmatovich finally obtained from
Bevan the information that a letter had been received from
Respondent Employer detailing the reasons for his dis-
charge; the content of this letter, dated January 26, has been
set forth above.
(6) According to Shmatovich, at a general membership
meeting of Respondent Union on February 10, he asked to
see the above letter and Bevan replied that, on advice of
counsel , he could not show it to him.
(7) On February 16, according to Shmatovich and his
wife, they met with Bevan at the office of Respondent
Union. Again, on advice of counsel, according to Shmato-
vich, Bevan advised him that he could read the letter but
could not make notes or copy it or take it from the room.
According to Bevan, he had previously been advised by
counsel in other cases never to give out any information
until after the grievance hearings.
(8) At the February 20 general membership meeting, Be-
van advised Shmatovich that he had appointed Recording
Secretary Richard Coleman of the Union and Richard
Gommeringer as the two union representatives on the
Board. Shmatovich testified that he objected on the basis
that he wanted to participate in the selection of the two
union representatives and, more particularly, to the choice
of Coleman. According to Shmatovich, he and Coleman
had "political differences" and Coleman, as recording sec-
retary of the Union, opened mail directed to President
Shmatovich of the Union. According to Bevan , Coleman
had sat upon a number of such boards in the past, he knew
of no frictidn between Coleman and Shmatovich, and Gom-
meringer was a knowledgeable shop steward who attended
union meetings.
(9) Shmatovich and his wife claim that Bevan assured
them that they could "subpoena" witnesses and they later
learned otherwise. Needless to say, such a power does not
exist . According to Mrs. Shmatovich, the word subpoena
was used and not the word summons. According to Bevan,
he told Shmatovich that if the case went to the ultimate
stage of arbitration (with the fifth neutral member present)
he would have the right to subpoena witnesses.
(10) According to Shmatovich, he had previously asked
employees Royce Johnson and Bill Cross to testify in his
behalf. They responded that they would do so only pursuant
to a subpoena.
(11) The General Counsel points to the testimony of Be-
van that he did not inform Board Member Coleman of the
objection of Shmatovich to his serving on the board until
after the hearing. Coleman's testimony lends itself to a find-
ing that this could have either been before or after the
hearing.
(12) The hearing was postponed several times . According
to Shmatovich, he telephoned Bevan early on the morning
of February 22 and discovered for the first time that the
hearing was to be held that very day.
(13) The General Counsel stresses that at the February
22 hearing Shmatovich had to share a copy of the charges
against him with a representative of the Employer. The
transcript reveals that the latter clearly proffered this to him
and, further, that Bevan proffered his copy and that both
were available to Shmatovich.
(14) The General Counsel has stressed that Shmatovich
wished two witnesses, Johnson and Cross, to testify in his
behalf on the afternoon of the hearing. Bevan asked Aber-
nathy, who was returning to the shop, to so advise them.
Abernathy did so; the two men asked if they were required
to appear; Abernathy replied in the negative and they opted
against it. According to Bevan, this is par for the course for
employees who generally do not wish to become involved.
It may well be inferred that they were either reluctant to
antagonize their employer or, on the other hand, to present
testimony adverse to Shmatovich.
In behalf of Respondent Union, the transcript of the
earlier hearing demonstrates that Shop Steward Robinson
presented grievous testimony against Shmatovich. That he
did so cannot be faulted against Respondent Union because
the simple answer is that Respondent Employer relied upon
his testimony.
Moreover, the transcript reveals that Bevan, probably
aware of the nature of Robinson's testimony, moved that he
be excluded from the hearing until he testified and this was
done.
The General Counsel has attempted to attach opprobri-
um to Respondent Union in that there was a reference at
the hearing to an earlier incident involving Shmatovich. But
the transcript readily discloses, as I read it, that Bevan stop-
ped and successfully confined the issue to those matters
raised by Respondent Employer in its letter of January 26
and restricted the scope of the hearing.
In addition, Shmatovich, an alert and manifestly an intel-
ligent witness before me, defended himself quite well at the
board of adjustment hearing , as is reflected in the transcript.
Indeed, as before me, he was a most articulate participant.
It is also noteworthy, as Bevan uncontrovertedly testified,
that there had been some 40 hearings of this nature in recent
years under the contract and that no grievant has ever at-
tempted to select a union representative to appear on the
Board.
While the case is not entirely free from doubt, I believe
that Business Representative Bevan, although perhaps
somewhat negative to Shmatovich, did not unfairly repre-
sent him at the board of adjustment hearing. Indeed, the
transcript reveals that it was a somewhat loosely held infor-
mal proceeding with Shmatovich, as stated, well and articu-
lately defending himself. I find, in view of the foregoing,
that Respondent Union has not engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act. See Szczesny v. Montgomery Ward & Co., 83 LRRM
2041 (C.A. 7, 1973).
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Marin Dodge, Inc.; Francisco Dodge Center, Inc., is
MARIN DODGE, INC. 375
an employer within the meaning of Section 2(2) of the Act.
2. Marin County Lodge No. 238, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Nick Shmatovich for engaging in
union and concerted activities, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
4. By the foregoing, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Marin County Lodge No. 238, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, has
not engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that Respondent Employer has engaged in
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It has been found that Respondent has violated Section
8(a)(3) and (1) of the Act by discriminatorily discharging
Nick Shmatovich. I shall, therefore, recommend that Re-
spondent offer him immediate and full reinstatement to his
former job, or, if this job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges. See The Chase National Bank of
the City of New York, San Juan, Puerto Rico Branch, 65
NLRB 827.
I shall further recommend that Respondent make him
whole for any loss of earnings he may have suffered as a
result of his discharge by payment of a sum of money equal
to that he normally would have earned from said date to the
date of Respondent's offer of reinstatement, less net earn-
ings, with backpay and interest thereon to be computed in
the manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
straining, or coercing employees in the exercise of the rights
guaranteed under Section 7 of the National Labor Relations
Act, except to the extent such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized by Section 8(a)(3)
of the Act,
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Nick Shmatovich immediate and full reinstate-
ment to his former job or, if this job no longer exists, to a
substantially equivalent position, without prejudice to sen-
iority or other rights and privileges, and make him whole for
any loss of pay suffered by reason of the discrimination
against him in the manner, provided above in the section
entitled "The Remedy."
(b) Preserve and make available to the National Labor
Relations Board and its agents, upon request, for examina-
tion and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports, and
all other records necessary to determine the amount of
backpay due under the terms of this Order.
(c) Post at its premises at San Rafael, California, copies
of the attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent, shall be
posted by it immediately upon receipt thereof and be main-
tained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
5 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. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
6 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
ORDER5
Respondent, Marin Dodge, Inc.; Francisco Dodge Cen-
ter, Inc., San Rafael, California, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activity in behalf of,
Marin County Lodge No. 238, International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization of its employees, by discriminating
in regard to hire or tenure of employment, or any term or
condition thereof.
(b) In any like or related manner interfering with, re-
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Nick Shmatovich immediate and full
reinstatement to his former job, or, if this job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileg-
es, and we will make him whole for any loss of wages
suffered as a result of our discrimination against him.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in, or activity in
behalf of , Marin County Lodge No. 238, International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization of our em-
ployees, by discharging employees , or by discriminat-
ing in any manner , in regard to hire or tenure of
employment or any term or condition thereof.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce our employees in the exercise
of the rights guaranteed under Section 7 of the Nation-
al Labor Relations Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization, except
to the extent such right may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment , as authorized by Section
8(a)(3) of the Act.
Dated By
INC
(Employer)
MARIN DODGE, INC
FRANCISCO DODGE CENTER,
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 13018 Federal Building, Box 360
47, 450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335.