Mission Valley Ford Truck Sales, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1989

295 N.L.R.B. 889 (N.L.R.B. 1989)

MISSION VALLEY FORD TRUCK SALES
Mission Valley Ford Truck Sales , Inc. and Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 93,
Local Lodge No. 1101. Case 32-CA-9863
June 30, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On April 14, 1989, Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, and the Respondent filed an answering
brief.
The National Labor Relations Board has delegat-
ed 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, 2
and conclusions3 and to adopt the recommended
Order as modified.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Mission Valley Ford Truck Sales, Inc.,
San Jose, California, its officers, agents, successors,
and assigns , shall take the action set forth in the
Order as modified.
Insert the following as paragraph 1(c).
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
1 No exceptions were filed to the judge 's 8(a)(1) findings.
2 The Charging Party has excepted to some of the judge 's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance 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 Cit.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
a We correct the judge 's inadvertent statement in sec . D,1, par. 2 that
the Respondent threatened Chapman with discharge . The record reflects
that the Respondent threatened Miller. This error does not affect our dis-
position of the case.
4 We shall modify the recommended Order to include narrow cease-
and-desist language , which the judge inadvertently omitted.
Virginia L. Jordan, Esq., for the General Counsel.
N. Paul Shanley, Esq. (Hubbert, Shanley & Lee), of Sacra-
mento, California, for the Respondent.
David M. Balter, Esq. (Wylie, McBride, Jesinger & Sure),
of San Jose, California, for the Charging Party.
DECISION
889
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on January 19, 1989, in San Jose,
California, pursuant to a complaint and notice of hearing
issued by the Regional Director for Region 32 of the Na-
tional Labor Relations Board (Board) on October 31,
1988, based on a charge filed on September 12, 1988, and
docketed as Case 32-CA-9863 by the International Asso-
ciation of Machinists and Aerospace Workers, AFL-
CIO, District Lodge No. 93, Local Lodge No. 1101 (the
Charging Party or the Union) against Mission Valley
Ford Truck Sales, Inc.
The complaint alleges that Respondent's agent, Service
Manager Bernard Chapman, threatened an employee
with discharge because of his union activities and in-
formed the employee he was absolutely prohibited from
speaking to any other employees about the Union, in
each case violating Section 8(a)(1) of the National Labor
Relations Act (Act). The complaint further alleges that
Respondent terminated employee Ray Miller because of
his union activities in violation of Section 8(a)(3) and (1)
of the Act. Respondent in its answer denies that it en-
gaged in the conduct alleged to independently violate
Section 8(a)(1) of the Act. Further Respondent avers
that it terminated Miller for reasons independent of his
union activities and therefore did not violate Section
8(a)(3) and (1) of the Act.
All parties were given full opportunity to participate
at the hearing, to introduce evidence, to call , examine
and cross examine witnesses, to argue orally and to file
posthearing briefs.
On the entire record,' including posthearing briefs
filed by the General Counsel and Respondent, and from
my observation of the witnesses and their demeanor, I
make the following2
FINDINGS OF FACT
I. JURISDICTION
At all times material , Respondent has been a Delaware
corporation with an office and place of business in San
Jose, California , where it has been engaged in the retail
sale and servicing of trucks . Respondent as part of its
business operations annually enjoys revenues in excess of
$500,000 and annually purchases and receives goods or
services from outside the state of California of a value in
excess of $50,000 . Respondent is therefore an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
1 The transcript of the proceedings was marginal at best . Absent a
motion to correct transcript I have taken the testimony of witnesses as
written In many cases the grammatical and other errors appearing in the
testimony , quoted infra, occurred during transcription and should not be
attributed to the witnesses or trial participants
2 As a result of the pleadings and stipulations at trial the parties sub-
stantially reduced the issues in dispute . Where not otherwise noted, these
findings are based on the pleadings , stipulations of the parties, or unchal-
lenged testimony or documentary evidence.
295 NLRB No. 89
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[I. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent opened its present San Jose facility in 1986
some weeks after the closure of South Bay Ford, an ap-
parently similar Ford Motor Company automobile fran-
chise operating at the same location . Respondent hired
some of South Bay Ford's employee complement , includ-
ing Service Manager Bernard Chapman, Service Fore-
man John Lewis, and a number of mechanics and others
in the parts and service departments.
South Bay Ford 's service employees had been repre-
sented by the Charging Party . Respondent 's employees,
insofar as this record suggests , have been at all times un-
represented.
B. Ray Miller 's Union Activities
Ray Miller interviewed with Respondent in September
1987 for a mechanic 's position . Chapman asked Miller if
he would have any problems working in a nonunion
shop.3 Miller told Chapman he would have "no gripes"
as long as "the pay was proper and everyone was treated
properly." Miller commenced work as a mechanic and
no further discussion concerning the Union occurred
until the spring of 1988 . At that time , Miller testified,
rumors of an organizational campaign led to a conversa-
tion between Chapman and Miller in Chapman's office.
Miller testified he told Chapman he was not organizing
and "unless there was a reason I wouldn't provoke the
Union to come in. Or try to organize it." Chapman did
not address this conversation in his testimony.
Miller commenced organizing Respondent in mid-June
19884 obtaining authorization cards from the Union and
distributing cards to fellow employees . There is no
record evidence that Respondent knew of Miller's orga-
nizational activities until July 20. On that day a general
meeting was held for all mechanics and parts employees
from both the day shift and the afternoon shift (which
started at 1 p.m .). Service Foreman John Lewis ad-
dressed normal shop matters at the 1 p.m. meeting. Fol-
lowing his address , Lewis asked the assembled employ-
ees if there was anything else to be discussed . Miller tes-
tified that another employee suggested they "get the
Union business out of the way and talk it over now."
Lewis recalled that at the end of his remarks Miller an-
nounced : "If anyone wanted to sign Union cards that he
had them in his tool box." Lewis testified that he an-
nounced to the employees:
[I]t would probably be a good time for everyone to
discuss it together since it was difficult, you know,
to get both shifts together at the same time, and that
I had knowledge of discussion about the union.
0 Miller had earlier been an employee of South Bay Ford and had
served as union steward during the time Chapman was service manager.
4 All dates hereinafter refer to 1988 unless otherwise indicated
Lewis told the employees to limit their discussion to 10
to 15 minutes and to return to work when done.
Lewis left the employee meeting and went to Barney
Chapman's office. Lewis reported to Chapman the cir-
cumstances of the meeting including the specifics that re-
sulted in the employees then continuing discussion of the
Union. Chapman told Lewis, in Lewis' recollection, that
the period Lewis had allowed the employees ' to discuss
the union should "pretty much be a maximum." Chap-
man did not address this conversation in his testimony.
After a few minutes Lewis returned to the employee
meeting and told the employees to go back to work and
finish their discussion later "off the clock ." Miller re-
called that Lewis told the men to go back to work be-
cause "Barney Chapman didn 't want them talking Union
business on company hours."
Miller testified that just after the meeting's conclusion,
Chapman approached Miller and another employee and
told the other employee to go back to work. Chapman in
some heat said to Miller:
[H]e didn 't want me talking to any more other
employees ever again as he's punching me on the
chest with his finger, saying that you once told me
that you were not going to have any involvement
with the Union, and at that time I said , no, not
unless there was a reason for it . And then he re-
plied, I ought to just fire you right now or termi-
nate you . I don't remember the wording . . . I just
threw up my arms and said , whatever . That was the
end of the conversation.
Chapman did not address this conversation in his testi-
mony . Chapman was the General Counsel's first witness
and, although present through the trial , was not recalled
as a witness thereafter.
C. The Events Concerning Miller's Termination
1. July 20
Apparently , a salesman noticed that a new Ford Econ-
oline Van which was part of Respondent 's new truck in-
ventory and parked in Respondent 's new vehicle area
had a pool of oil under it as if some part of its mecha-
nism was leaking . A repair order was written on the ve-
hicle by Tom Hamilton, then a service writer for Re-
spondent , on the morning of July 20 with a notation:
"engine leaking oil." Hamilton did not testify respecting
his role in preparing the repair order.
Miller testified that he received the repair order in a
normal manner early in the afternoon of July 20 from
John Lewis who reported to him that the vehicle was in
the new truck lot and that a salesman had reported a
leak. Miller testified he located the van in the lot and no-
ticed a puddle of transmission fluid running out from un-
derneath the truck . Miller started the van and, with some
difficulty because of low transmission fluid level, drove
the van into his service bay. The bay used by Miller is
located next to and visible from both Lewis' workstation
and Chapman 's office.
Miller testified that he completed a standard transmis-
sion removal and reinstallation which required that he
MISSION VALLEY FORD TRUCK SALES 891
obtain new gaskets from the parts department . Consistent
with normal practice , he turned in the old gaskets with
the completed paperwork at the time he finished the job.
Miller entered on the repair order the time he required
to complete the job : 2.8 hours .5 Miller testified that after
finishing the job he was given another repair order and
commenced work on that assignment . Miller testified
that the Econoline repair was conventional and that
standard procedures were applied throughout . He knew
of nothing out of the ordinary regarding the assignment
or its completion on July 20.
2. July 21
Lewis testified that it was one of his duties to review
completed repair orders . He reviewed Miller's repair
order for the Econoline Van on the morning of July 21
along with other repair orders done on July 20. Lewis
testified that, given the work described-the removal
and reinstallation of the transmission , the reported time
spent-2 . 8 hours-made him suspicious . Although Lewis
readily described Miller as a "good mechanic," the time
taken by Miller to do the job was, in Lewis ' view, "too
short ." Lewis described the 2 . 8 hours listed as necessary
to complete the transmission work as "substantially
below the average time or even the published time that it
should take."
Lewis testified that at the time he reviewed the repair
order he did not consult the Ford Manual which sets
forth times allowed by Ford Motor Company in paying
its dealers for various tasks undertaken in the perform-
ance of warranty work, i .e., "the published time it should
take ." Rather Lewis testified he relied on his experience
in his position and his knowledge of the amount of time
required by Respondent's mechanics to do the same or
similar work at the facility . Lewis testified he believed
the Ford authorized time for the work in question was
3.5 hours but that as a matter of practical reality that
time was not readily achieved . He estimated the shop av-
erage for the work was 4 to 5 hours and the fastest he
had seen the work accomplished was 3.8 hours . Allowed
to examine the Ford manual on the witness stand, Lewis
concluded that Ford allowed 3.3 hours for the work at
issue.
Acting on his suspicions Lewis testified that he re-
trieved from Respondent's file system the used parts
Miller had submitted with the completed repair order.
After examining the parts Lewis concluded they could
not have come from a new vehicle, but were rather from
a transmission with substantial mileage . Lewis testified he
also inspected the van in the new truck lot and discov-
ered that, although the van was not then leaking fluid of
any kind , the underside of the van bore no evidence of
having been disturbed . Since it was necessary to leave
visible scratches , marks, and other evidence of removal
and reinstallation when repairing such a truck 's transmis-
sion , Lewis concluded that the transmission had never
been removed and that Miller's assertions of work done
and time required on the repair order were bogus.
5 The repair order bears a beginning time stamp entry , 15:42, and a
completion time stamp entry , 18:30.
Lewis testified that at this point he returned to his reg-
ular duties until Chapman arrived at work . Lewis then
went to Chapman 's office and reported to Chapman that
he had a repair order that was a "kink " and needed to be
investigated . Lewis testified that Chapman told him to
verify his suspicions with several other employees. Chap-
man recalled that Lewis came to him and reported that
he had a repair order with an "impossibly short time,"
i.e., a reported time for accomplishing a warranty task
which could not in fact be done in so short a time. Chap-
man told Lewis not to raise the matter with him then but
to take others out to the truck to verify that the work
had not been done.
Lewis brought numerous employees to the van and
had them inspect it for evidence that the transmission
had been removed . The employees' unanimous conclu-
sion was that the van unambiguously indicated that the
transmission had not been removed nor the bolts and
other transmission underpinnings disturbed.
After this process was completed , Lewis described his
views and the opinions of the other employees to Chap-
man who made his own inspection . When Miller arrived
at work Chapman took him to the van and there con-
fronted him with the proposition that the transmission
had not been removed. The conversation continued in
Chapman 's office where Chapman produced the parts
Lewis had retrieved which allegedly came from the van.
Miller's version of the conversation differs in significant
respects from Chapman 's. Ultimately Miller was dis-
charged for falsifying the repair order and the instant
charge was filed.
D. Analysis and Conclusions
1. The allegations of independent violations of
Section 8(a)(1) of the Act
The General Counsel alleges that Chapman, an admit-
ted agent of Respondent, told Miller he was absolutely
prohibited from speaking to any other employee about
the Union and, further, threatened to discharge Miller
because of his union activities . The General Counsel's
factual contentions are supported by the testimony of
Miller quoted in full, supra . Respondent attacks the
credibility of Miller, however, Chapman did not testify
respecting the statements Miller attributed to him. The
undisputed sequence of events lends credence to Miller's
testimony and Miller's credibility was not such that his
unchallenged attributions fall of their own weight. I find
the conversation occurred as testified to by Miller.
Given the credited statements, it follows further that
Respondent violated Section 8(a)(1) of the Act by threat-
ening Miller with discharge for his union activities. Tell-
ing an employee he "ought" to be fired in the context
presented here clearly tends to be coercive. NLRB v.
U.S. Industries, 701 F.2d 452 (5th Cir. 1983). Chapman's
broad order to Miller not to discuss the Union with any
employee "ever again " goes far beyond any legitimate
restriction an employer may make on employee union ac-
tivities at the workplace and therefore also violates Sec-
tion 8(a)(1) of the Act. Cf. Predicasts, Inc., 270 NLRB
1117 (1984).
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Chapman's remarks were made in context that sug-
gests he believed that Miller had earlier bound himself
not to undertake union organizational activities among
Respondent 's employees . The events described above, in-
cluding Miller's uncontradicted version of his earlier
statements to Chapman regarding his intentions respect-
ing union organizing , show that Miller's earlier promises
not to organize were not unconditional . Even had Miller
made earlier unconditional promises to refrain from orga-
nizational activity, such promises would not constitute a
defense to Respondent 's conduct here. The unenforcabi-
lity of a so-called yellow dog contract and the fact of
such a contract 's being contrary to public policy was es-
tablished by Federal statute well before the passage of
the Act.6
2. The 8(a)(3) and (1) allegation concerning the
discharge of Miller
In trying and arguing their cases the parties were well
aware of the Board 's analytical framework for mixed
motive discharge cases established in Wright Line, 251
NLRB 1083 ( 1980), approved by the Supreme Court in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). In Wright Line, supra, 251 NLRB at 1089, the
Board established the following two-step process:
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer 's decision . Once this is es-
tablished , the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of protected conduct.
It is appropriate therefore to consider first the General
Counsel 's prima facie case and then consider Respond-
ent's defense.
a. The General Counsel 's prima facie case
The General Counsel asserts that Miller was an admit-
tedly excellent mechanic in no apparent difficulty with
his employer until the meeting of July 20 at which he
was openly identified as the union activist in an ongoing
union organizing campaign . Immediately thereafter, the
General Counsel argues and I have found supra, Re-
spondent 's agent Chapman angrily prohibited Miller
from ever discussing the Union with other employees
and threatened to discharge him because of his union ac-
tivities.
Within perhaps an hour of these events, Miller was as-
signed a repair order which he testified he completed
without difficulty or incident turning in the completed
paperwork consistent with normal practice . The follow-
ing day Miller learned that his repair work on the Econ-
oline Van the previous day was so suspicious that Re-
spondent investigated his submitted repair order and
found it fraudulent . Miller was then immediately dis-
charged for the purportedly fraudulent work. Respond-
ent had never had a previous "incident" involving a falsi-
fied repair order.
The General Counsel argues this series of events
shows the strong probability that Miller was discharged
for his union activity and, further , the strong probability
that the "incident" purportedly the basis for Miller's dis-
charge was a pretext initiated and concluded solely to
cloak the true, illegal reason for Miller's discharge.
The General Counsel 's factual contentions are either
admitted or based on uncontradicted testimony. The
General Counsel 's case establishes : ( 1) Respondent's
knowledge of Miller's union activities , (2) Chapman's
animus against employee union activities generally and
particularly involving Miller whom Chapman apparently
believed had assured him he would not engage in such
activities, (3) threats by Chapman to Miller that he
"ought" to fire Miller because of his union activities,
and, finally , (4) the remarkably close timing between
Chapman 's learning of Miller's activities , Chapman's
threat to discharge Miller, the onset of the repair order
investigation , and Miller's discharge . Based on all the
above, I find the General Counsel's prima facie case is
established within the meaning of Wright Line, supra.
b. Respondent 's defense
Having found the General Counsel has established a
prima facie case, it is appropriate as contemplated by the
Board in Wright Line, to assign Respondent the burden
of proof as to its affirmative defense that Miller was dis-
charged for business reasons unrelated to and independ-
ent of his union activity . The heart of Respondent's de-
fense and the matter primarily litigated at the trial was
the asserted misconduct which Respondent maintains re-
quired the termination of Miller . Respondent took the
position at the time of Miller 's discharge and has main-
tained consistently thereafter that Miller was terminated
because he had submitted a falsified or fraudulent repair
order representing that work had been done on a motor
vehicle which had not in fact been done . This conduct,
argues Respondent , caused Miller's discharge and would
have done so even if Miller had never engaged in union
activity.
The General Counsel does not argue , nor could she on
this record , that a mechanic 's falsification of a warranty
repair order , i.e., the representation that significant work
had been done on a vehicle which had not in fact been
done, is not an offense justifying termination . Thus, the
issue here is not whether or not the punishment fits the
crime at all or whether or not the asserted crime was a
pretext raised to justify an otherwise unjustifiable dis-
charge . Even thus narrowed, there remain two related
elements of Respondent's defense which merit separate
analysis . The first element is the basis or lack thereof for
initiation of the investigation of the work underlying
Miller's repair order of July 20. Respondent asserts the
submitted repair order was so unrealistic in its purported
repair times that further inquiry was natural if not com-
pelled . The General Counsel challenges this factual con-
tention and argues the lack of any reasonable basis for in-
vestigating the repair order undermines Respondent's de-
fense as a whole .7 The second element of the defense is
r Thus, the General Counsel argues on brief
6 Norns-LaGuardia Act, 47 Stat. 70 (1932) 29 U.S.C. § 101 et seq. Continued
MISSION VALLEY FORD TRUCK SALES 893
Respondent 's assertion that its investigation proved with-
out reasonable doubt that Miller falsified the repair
order . This element of the defense pits the testimony of
the employee witnesses of Respondent concerning their
inspection of the van and the conclusions that could rea-
sonably be drawn from their observations against the
direct testimony of Miller respecting what he did when
repairing the van.
(1) Lewis' initiation of the investigation of Miller's
repair order
John Lewis served as a service foreman under South
Bay Ford for some years and, after a brief period with
Respondent in a mechanic 's position , he resumed his
former position as service foreman ." The General Coun-
sel did not allege in her complaint nor contend at trial
that Lewis was a supervisor within the meaning of Sec-
tion 2( 11) of the Act or otherwise an agent of Respond-
ent. I find therefore that Lewis was not an agent of Re-
spondent . This finding is important to resolution of the
case because there are essentially three different findings
which may be made with respect to Lewis' initiation of
the investigation . First, if Lewis is credited in full, his in-
vestigation was initiated entirely because of Miller's
repair record entries and the General Counsel 's argument
that the entire investigation was tainted from its incep-
tion fails . Second, if it were found that Lewis entered
into a conspiracy with Chapman to initiate an investiga-
tion where none could be justified , neither the investiga-
tion nor its purported results could be used to justify
Miller's termination . Respondent's defense would fail at
this stage and need not be further considered.
A possible third interpretation of events , however,
turns on Respondent 's responsibility for Lewis' conduct
and motivation . If Lewis initiated his investigation in
whole or in part because of Miller's union activities but
did so on his own, Respondent is not liable for that im-
proper motive unless Respondent either knew or should
have known Miller's union activity was the reason for
Lewis' initiation of his investigation . Analogizing to the
doctrine of the fruit of the poisonous tree in criminal
law, Respondent would have been unable to assert or
otherwise rely on the result of the repair order and van
investigation as a basis for discharging Miller if Respond-
ent bore responsibility for an illegally initiated investiga-
tion . Since Lewis is an employee of Respondent rather
than a supervisor or other agent of Respondent , the Gen-
eral Counsel must establish not just that Lewis initiated
his investigation of Miller because of Miller's union ac-
tivities, but that Chapman was involved in the tainted de-
cision , was aware of Lewis' improper motivation or
should reasonably have been aware of it.
As the evidence does not support Respondent 's claim that the time
listed on the repair order obviously alerted it to a possible problem,
General Counsel contends that Respondent 's entire "investigation"
comes under a cloud ; if you cannot trust the original motive, you
cannot trust the subsequent investigation (G.C. Br. 10).
8 Lewis identified his title as "Service Foreman ." Chapman used the
title "First Shift Foreman ." Counsel for Respondent on brief refers to
Lewis without citation of authority as "Service Writer ." I accept the title
"Service Foreman "
Lewis' testimony that he was struck by the impossibil-
ity of Miller's recorded time for removing the van's
transmission is not susceptible to direct contradiction in-
asmuch as it is testimony regarding Lewis' subjective
motivation . Further, Lewis made it clear that his opin-
ions regarding the time entry on the repair order were
based on his work experiences generally . He did not con-
sult the Ford manual or relied on a particular mechanic
or mechanics ' history with the same job. Thus Lewis'
testimony is not directly challenged by argument about
either the manual or employees ' specific work experience
with similar work.
The General Counsel and Respondent litigated at some
length both the total Ford manual time for the work de-
scribed on the repair order and the experience of Re-
spondent 's mechanics in doing the same tasks . Respond-
ent's employees testified that the time actually required
was generally in excess of 4 hours . Miller testified that
he regularly accomplished the tasks in under 3 hours and
reported that fact on repair orders for the assigned jobs.
The General Counsel argues that an adverse inference
should be drawn against Respondent for not producing
these repair orders at trial.
I have considered all the above testimony and argu-
ment as well as the record as a whole. I find that it is
simply unnecessary to resolve all the apparent discrepan-
cies raised . This is so because, even resolving the direct
evidentiary conflicts in a manner most favorable to the
General Counsel , the entire record does not rise to a
level sufficient to convince me that Lewis did not be-
lieve on July 21, when he reviewed Miller's repair order,
that the 2 .8 hour entry was "too short ," but rather that
he was anxious to cause the discharge of Miller because
of his union activities and was hoping to uncover any
type of nonconformity with rules or procedures which
could be used to discharge Miller . This determination is
based in part on a favorable view of Lewis' demeanor, in
part on the view that Lewis' expressed opinion was not
at fatal variance with either the manual entry or the tes-
timony of at least some witnesses regarding the time re-
quirements of the transmission work and, finally, in part
on the absence of significant evidence that Lewis bore
Miller ill feelings as a result of his union activities."
More important to a resolution of the case however, I
find the record clearly insufficient to hold Respondent
accountable for an illegally motivated investigation even
were the evidence sufficient to so support such a finding
with respect to Lewis' motivations. First, there is no sig-
nificant evidence suggesting that Chapman and Lewis
conspired to initiate a staged investigation . Second, there
is no evidence which would charge Chapman with either
knowledge or constructive knowledge of any antiunion
motive by Lewis in initiating his investigation of Miller's
work. There is no suggestion that Lewis spoke with
Chapman about the matter until Lewis had questioned
9 Lewis at the meeting on July 20 allowed the employees to discuss the
union showing at least as of that time less than open hostility to employee
union activities . While it may be argued that Chapman 's comments to
Lewis when Lewis met with him during the employee union discussions
may have engendered animus in Lewis against Miller, the argument is in-
sufficient without additional evidence of Lewis ' animus.
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the repair order, pulled the parts and inspected the van.
When they did speak about the matter upon Chapman's
arriving at work on the morning of July 21 , Lewis in-
formed Chapman not only that he suspected Miller of
misreporting the time necessary for the repair but that he
also believed that the reported repair work had not in
fact been done on the van at all. Chapman did not ask
Lewis why he had initially questioned Miller's repair
order, but there is no evidence that Chapman should
have suspected Lewis had been acting other than on le-
gitimate grounds.
Given these findings , I conclude that Respondent,
through its agent Chapman , took Lewis ' report at face
value and thereafter conducted additional investigation
of the repair order and the Econoline Van, not because
of Miller's union activities , but as part of its normal busi-
ness practices . I reject the arguments of the General
Counsel that the investigation was a sham, ab initio, to
provide a pretext for Miller's termination for union ac-
tivities or that Respondent was directly involved in initi-
ating the investigation by Lewis or knew or should have
known that Lewis' motives were malign . Accordingly, it
is appropriate to turn to the evidence and argument re-
garding the alleged misconduct of Miller.
(2) The investigation of its results
Lewis testified that once he determined to investigate
Miller's repair order he pulled and checked the used gas-
kets and other materials turned in by Miller at the con-
clusion of his repairs . Lewis concluded that the parts
submitted by Miller could not have come from a new ve-
hicle.' ° He then located the vehicle in question and ex-
amined its underside . Forming the strong opinion that
the truck had not had its transmission removed, he re-
ported his views to Chapman who directed him to obtain
other opinions . This was done and the unanimous view
of the other inspectors was that the vehicle had not had
its transmission removed . As the General Counsel sum-
marizes on brief: "Respondent produced 7 witnesses who
testified that they looked at the truck in question on July
21 and saw that no repair work had been done on the
transmission."
Chapman considered these reports and consulted with
his superiors . When Miller arrived at work Chapman
took Miller to the van and challenged him regarding the
appearance that the transmission had not been removed.
The two then went to Chapman's office where Chapman
showed Miller the parts Lewis had given him as having
been submitted by Miller at the conclusions of the re-
pairs. Following discussion , Miller was fired by Chap-
man for falsifying the repair order . Respondent later sold
the vehicle involved , but recalled the vehicle in January
1989 for further inspection to determine if a particular
plastic part or plug remained resident in the transmission.
Respondent adduced unchallenged evidence that the part
was in fact still in the vehicle's transmission when it was
10 There was no dispute that the parts examined by Lewis and ad-
dressed by various witnesses at the hearing could not have come from a
new vehicle Indeed , Miller both on July 21 and at the hearing did not
disagree . Rather, he asserted the parts he was shown on July 21 and at
the hearing were not the ones he turned in with his repair order on July
20.
opened in January 1989. Respondent adduced further tes-
timony that the van's transmission could not have been
removed and opened by Miller or anyone since its initial
installation as part of the manufacturing process because
whenever a transmission is opened after its installation
during the manufacturing process, this part is removed.
Thus argues Respondent the presence of the part in the
transmission after July 20 is additional evidence that Mil-
ler's reported work on the van had not in fact been done.
The General Counsel challenges the observations
made by the mechanics and service personnel who exam-
ined the van on July 21 and who testified at the hearing.
She also challenges the witnesses ' credentials , experience,
and expertise arguing that these individuals based on
their inspections on July 21 could not determine with
any degree of confidence if the transmission had ever
been removed from the van . She similarly attacks Re-
spondent's arguments deriving from the fact that the part
was still present in the transmission when it was later
opened . Against this indirect or circumstantial evidence,
the General Counsel strongly urges the credibility of
Miller 's direct testimony of what he did to the van on
July 20. Miller testified that he made the repairs as de-
scribed on the repair order in the time noted . Thus he
asserted under oath that he removed the transmission
from the van , replaced the necessary seals and gaskets
and reinstalled the transmission . Miller suggested the part
Respondent witnesses testified to as always removed
from a transmission on its initial field opening , in some
instances will and in the instant case did remain in the
transmission after he opened and reclosed it.
I have considered all the above including the demean-
or of the witnesses , the arguments of counsel based on
motive, probability and the record as a whole in making
the following findings . First, I find that the investigators
took sufficient care to observe and did observe the vehi-
cle on July 20, that they had the skills and experience to
form a judgment on the question of the transmission's
previous removal, and that their conclusion that the
transmission had not been removed is credible . I discred-
it Miller's contrary testimony not so much based on an
inferior demeanor but rather because his testimony
simply cannot stand in the face of the overwhelming
contrary evidence . Given all the above, I find that Miller
did not remove the transmission as noted on the repair
order . I make this finding noting full well that Respond-
ent bears the burden of proof on this aspect of the case. I
also find on this record that Chapman fired Miller be-
cause of the reports that Miller had not done the repairs
reported on the repair order . Concluding that Respond-
ent regarded a falsified warranty repair order as a serious
matter warranting termination , I further find that Re-
spondent would have terminated Miller based on the
repair order misrepresentations even if Miller had not en-
gaged in union activities.
I am aware that simply accepting Respondent 's argu-
ments: (1) that it is possible with a substantial degree of
confidence to determine by inspecting the underside of a
new van whether or not the transmission has recently
been removed and (2) that skilled observers inspected the
vehicle at issue on July 21 and determined the transmis-
MISSION VALLEY FORD TRUCK SALES 895
sion had not been removed on July 20, does not resolve
many loose ends in the case . Thus, for example, such a
determination does not explain how the transmission
went from apparently leaking on July 20 to not leaking
on July 21 . I have considered the General Counsel's ar-
guments supporting her position based on this and other
factual improbabilities in reaching the findings above. I
do not believe, however , that it is necessary to resolve
all uncertainties in this matter once the determination has
been made that Miller did not do the repairs noted on
the repair order and that Chapman believed this was the
case when he discharged Miller.
3. Summary and conclusion
a. The independent 8(a)(1) allegations
I have sustained the General Counsel 's factual and
legal arguments and found merit to the complaint allega-
tions that Respondent through Chapman violated Section
8(a)(1) of the Act by telling Miller not to speak to other
employees about the Union and by telling Miller that he
ought to fire him because of his union activities.
b. The 8(a)(3) and (1) allegation
I have found that the General Counsel sustained a
strong prima facie case that Respondent terminated Ray
Miller because of his union activities . Assigning the
burden of proof of Respondent, I further found that Re-
spondent would have discharged Miller even if he had
not engaged in union activities . More particularly, I
found that Respondent 's employee , Service Foreman
John Lewis , initiated an investigation of the underlying
circumstances of a repair done by Miller and that this in-
vestigation was not caused by any act of an agent of Re-
spondent and was not otherwise attributable to Respond-
ent. The result of that investigation was that substantial
work represented as done on the vehicle by Miller had
not in fact been done . Respondent 's service manager,
Ray Chapman , terminated Miller as a result. Having
found that Respondent has established its affirmative de-
fense that it would have terminated Miller irrespective of
his union activities , the General Counsel's allegations re-
specting Miller's termination are without merit and will
be dismissed.
REMEDY
(a) Informing an employee that he was absolutely pro-
hibited from speaking to other employees about the
Union.
(b) Threatening to discharge an employee because of
his union activities.
4. Respondent has not otherwise violated the Act as
alleged.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edtt
ORDER
The Respondent , Mission Valley Ford Truck Sales,
Inc., San Jose, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Informing employees that they are absolutely pro-
hibited from speaking to other employees about the
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 93, Local
Lodge No. 1101 or any other union.
(b) Threatening to discharge employees because of
their union activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its San Jose, California facility copies of the
attached Notice marked "Appendix ." 12 Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being signed by Respondent 's authorized
representative , shall be posted 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 the notices are not al-
tered , defaced or covered by other material.
(b) Notify the Regional Director in writing within 20
days from the date of the Order what steps Respondent
has taken to comply.
11 All motions inconsistent with this recommended Order are denied
If no exceptions are filed as provided by Sec . 102.46 of the Board 's Rules
and Regulations , the findings , conclusions, and recommended 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.
la 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 Nation-
al 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."
Having found Respondent engaged in certain unfair
labor practices , I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action to effectuate the purposes and policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act on
July 20, 1988, by engaging in the following acts and con-
duct:
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 employees that they are absolutely
prohibited from speaking to any other employees about
the International Association of Machinists and Aero-
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
space Workers, AFL-CIO, District Local No. 93, Local WE WILL NOT in any like or related manner interfere
Lodge No. 1101 or any other union. with, restrain, or coerce you in the exercise of the rights
WE WILL NOT threaten our employees with discharge guaranteed you by Section 7 of the Act.
because of their union activities.
MISSION VALLEY FORD TRUCK SALES,
INC.