Pacific Diesel Parts Co.

National Labor Relations Board - Board Decisions

May 22, 1973

203 N.L.R.B. 820 (N.L.R.B. 1973)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Diesel Parts Company and Teamsters , Automo-
tive Workers Local 495, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Cases 21-CA-11092, 21-CA-11231,
and 21-CA-11409
May 22, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On February 22, 1973, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief. Respondent filed
no exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Pacific Diesel Parts Com-
pany, South Gate, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
I The Respondent , in a letter dated April 2, 1973, has requested oral
argument. This request is hereby denied because said letter has failed to
demonstrate that oral argument is warranted in this case.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in these cases held on January 9 and 10, 1973, is
based upon charges filed by the Union named above on
July 6, 1972 (Case 21-CA-11092); on September 5, 1972, as
amended on October 1, 1972 (Case 21-CA-11231); and on
November 28, 1972, as amended on December 4,1972 (Case
21-CA-11490), and an amended consolidated complaint
issued on December 11 , 1972, on behalf of the General
Counsel of the National Labor Relations Board , herein
called the Board, by the Regional Director of the Board for
Region 21, herein called Regional Director. The amended
consolidated complaint alleges that Pacific Diesel Parts
Company, herein called the Respondent, has engaged in
unfair labor practices within the meaning of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act, herein
called the Act. Respondent filed an answer denying the
commission of the alleged unfair labor practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Pacific Diesel Parts Company, the Respondent, is a cor-
poration with its place of business located in South Gate,
California , where it sells surplus diesel engine parts. In the
course and conduct of its business the Respondent annually
sells and ships materials valued in excess of $50,000 directly
to customers located outside the State of California. The
Respondent admits that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Teamsters Automotive Workers Local 495, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent employs about four employees under the im-
mediate supervision of its president and general manager,
George Brown. Also involved in this case is Respondent's
secretary-treasurer, Robert Clarke, who represented Re-
spondent at the hearing.
On May I (all dates herein, unless specified otherwise,
refer to the year 192), employees John and Danny Rodri-
guez signed cards authorizing the Union to represent
Respondent's employees as bargaining representative. The
Union then filed a petition for a representation election with
the Regional Director. An election was conducted on June
9 at which two of the three employees eligible to vote voted
for the Union, and on June 19 the Regional Director certi-
fied the Union as the exclusive bargaining representative of
"All shipping and receiving employees, warehouse men and
truckdrivers . . . excluding all other employees, including
office clerical employees, guards, professional employees
and supervisors as defined in the Act."
The charge in Case 21-CA-11092 alleging that Respon-
dent had refused to bargain was filed on July 6, and on
August 18 the Regional Director approved a settlement
agreement executed by Respondent by which Respondent,
among other things, agreed to cease and desist from refusing
to bargain with the Union over terms and conditions of
employment of the unit employees. The Regional Director
on October 17 by letter addressed to all of the parties vacat-
203 NLRB No. 133
PACIFIC DIESEL PARTS COMPANY
ed and set aside the settlement agreement claiming that it
had been violated by the Respondent.
The ultimate issues defined by the pleadings and litigated
at the hearing are:
1. Whether Respondent without bargaining with the
Union unilaterally eliminated daily overtime work of unit
employees, unilaterally discontinued the practice of allow-
ing relatives of unit employees to join them in the plant
during lunch break, and refused to bargain in good faith
with the Union, all since August 18, the date of the settle-
ment agreement , and by this conduct violated Section
8(a)(5) and (1) of the Act.
2. Whether Respondent eliminated the daily overtime
work and placed the plant off limits to employees' relatives
because of the employees' union sympathies and activities
and by engaging in such conduct violated Section 8(a)(3)
and (1) of the Act.
3. Whether the conduct described above violated the set-
tlement agreement approved by the Regional Director in
Case 21-CA-11092.
4. Whether Respondent violated Section 8(a)(5) of the
Act by refusing to bargain with the Union in good faith
during the period covered by the settlement agreement.
5. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by terminating the employment of Sam, John,
and Danny Rodriguez because of their union sympathies or
activities.
6. Whether in violation of Section 8(a)(1) of the Act Re-
spondent, through its president, George Brown, interrogat-
ed employees about their union sympathies and activities
and about the union sympathies and activities of other em-
ployees and threatened them with economic reprisals if they
supported the Union.
7. Whether in violation of Section 8(a)(1) of the Act Re-
spondent, through its secretary-treasurer, Robert Clarke,
interrogated employees about their union sympathies and
activities and about the union sympathies and activities of
other employees.
B. Interference, Restraint, and Coercion
John Rodriguez credibly testified that on about May 8,
1 week after the employees had signed union cards, Presi-
dent Brown told John Rodriguez the Company had received
a letter that the Union wanted to organize the shop and
asked him if he knew anything about the matter. When
Rodriguez claimed ignorance, Brown asked "are you sure
you're telling me the truth, are you sure you didn't go see
an attorney," or go to the union hall. Rodriguez continued
to maintain his innocence. Brown warned Rodriguez that
"it would go bad for [Rodriguez]" and that it would be too
bad for Rodriguez if Brown found out he was the one who
"had anything to do with [the Union]." The conversation
ended with Brown handing Rodriguez the telephone and
telling him to speak to the Company's secretary-treasurer,
Robert Clarke, who was on the line, and to repeat for Clarke
what he had just said . Rodriguez credibly testified Clarke
asked him, "if I had went to see an attorney or contacted
somebody about the Union." Rodriguez said "no." Clarke
821
warned, "you might as well tell us, because we'll find out"
and again Rodriguez pleaded that he was innocent.
Brown on or about May 8, at work, also spoke to employ-
ee Danny Rodriguez, John's brother, about the Union.
Danny Rodriguez credibly testified that Brown asked if he
knew anything about the Union. Danny Rodriguez credibly
testified that Brown asked if he knew anything about the
Union. When he answered no, Brown asked "are you sure"
and again Danny said he was without knowledge, at which
point Brown cautioned him that if Brown found out he was
lying, that it would be real bad for Rodriguez. Brown said
that he was just doing the employees a favor by providing
work for them and could easily contract out the work being
done by the employees to another shop. In a similar vein,
Brown spoke to John Rodriguez on three or four separate
occasions between May 8 and August 23 (the date he was
fired). John Rodriguez credibly testified Brown told him the
shop was not going to become Union, the shop was too
small, that he only kept operating as a favor to the employ-
ees to provide them with work, but that if he had to he
would contract out the work and close the shop.
On August 23, the representatives of the Union met with
Clarke at which time, as will be described later, the union
representatives threatened to picket and strike Respondent
in an effort to get Respondent to negotiate a contract. The
meeting which was attended by employee John Rodriguez
ended at about 11 a.m. and John returned to the shop and
informed his brother, employee Sam Rodriguez, that the
Union might picket Respondent. Later that same day, em-
ployee Sue Harris, who along with Sam and John Rodriguez
made up the bargaining unit, was walking through the shop
on her way to the office and Sam, in the presence of John
Rodriguez, asked her whether she was going to join the
Union's picket line. Harris said no and continued on her
way to the office. Brown , who was working in the area,
overheard this colloquy and immediately went over to the
Rodriguez brothers. Brown asked John Rodriguez "if [he]
was still going through" with the Union. John replied that
since the Union had won the election, the matter was out
of his hands. Brown answered, "you and you alone brought
this union in. You can kick this . . . Union out." John
stated he could not do this and further stated that he had
voted against the Union and that it was his brother Danny
and Sue Harris that had cast the two votes for the Union.
Brown expressed disbelief and declared that he was going
to get Sue Harris and have John confront her with his state-
ment that she had voted for the Union. Brown left and
immediately returned with Sue Harris as well as employee
Georgette Stokes and, in the presence of the other employ-
ees, Brown told John Rodriguez to repeat his earlier state-
ment about Harris voting for the Union. John did, and
Harris, supported by Stokes, denied that she had voted for
the Union. Harris and Stokes left and Brown continued his
conversation with John Rodriguez in the presence of Sam.
Brown declared that, "he'd had it" with John Rodriguez,
explaining that John had "cost him nothing but money and
grief the last three months" and warned John, "keep it up,
buddy. I'm telling you. I'm warning you, I've had just about
as much as I'm going to take from you." John asked what
Brown had against the Union. Brown replied he had noth-
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing against the Union but that the shop was too small for
the Union and that if John wanted a union "why don't you
quit and go work in a union shop." The conduct and state-
ments attributed to Brown on August 23, as set out above,
are based on the credible testimony of John Rodriguez
which was corroborated in all important respects by the
credible testimony of Sam Rodriguez.
Regarding the various acts of interrogation and threats of
reprisal attributed to Brown, set out above, John, Danny
and Sam Rodriguez, when they testified about these mat-
ters, impressed me as honest witnesses making a sincere
effort to accurately recall the words Brown used. Brown
generally denied threatening employees with discharge,
plant closure, loss of benefits, or other reprisals if they sup-
ported the Union and testified that his only interrogation of
employees was when he asked Danny and John Rodriguez
if they had gone to the Union. Brown did not impress me
as a trustworthy witness when he testified on these matters.
Accordingly, in making the findings set out immediately
above in this section I have rejected Brown's testimony
whenever it conflicts with the testimony of the Rodriguez
brothers.
Regarding the interrogation of John Rodriguez by Clarke
over the telephone, John Rodriguez testified in a straightfor-
ward, candid manner and impressed me as a reliable wit-
ness . It is undisputed that the phone conversation took
place. Clarke, however, did not give his version of the con-
versation but simply testified that "I would like to deny that
I interrogated any employees about Union membership at
Pacific Diesel Parts."
Based on the findings set out above, I conclude that the
Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of their statutory right to join or assist
the Union by engaging in the following conduct:
1. On or about May 8, Brown interrogated John and
Danny Rodriguez about their union membership, sympa-
thies, and activities.
2. On or about May 8, Brown threatened John Rodriguez
with economic reprisals if the Respondent discovered he
had supported the Union.
3. On or about May 8, Clarke interrogated John Rodri-
guez about his union membership, sympathies, and activi-
ties.
4. Between May 8 and August 23, on more than one
occasion, Brown threatened John Rodriguez that Respon-
dent would contract out the work and close the shop if the
employees supported the Union.
5. On or about May 8, Brown threatened Danny Rodri-
guez with economic reprisals, including contracting out the
employees' work and closing the shop, if the employees
supported the Union.
6. On August 23, Brown interrogated John Rodriguez
about his union membership, sympathies, and activities and
on the same date interrogated Sue Harris about how she had
voted in the representation election.
7. On August 23, Brown threatened John Rodriguez with
economic reprisals if he continued to support the Union and
invited him to quit his job with Respondent if he continued
to support the Union.
C. The Unilateral Changes
1. The elimination of daily overtime work
On August 23, Respondent employed three unit employ-
ees, John and Sam Rodriguez, and Sue Harris. The Rodri-
guez brothers performed solely shipping, receiving and
warehouse work. Harris spent most of her time doing cleri-
cal work and the remainder driving the Company's vehicle
making pickups and deliveries. Harris started work daily at
8 a.m., John Rodriguez at 6:45 a.m., and his brother Sam
at 7 a.m. All employees worked daily until 4:30 p.m., taking
one-half hour off for lunch. The 15-minute difference be-
tween the Rodriguez brothers' starting time was due to the
fact that John had the task of unlocking and opening up the
shop each morning. In short, John worked 9 1/4 hours, and
Sam worked 9 hours, daily. John had worked the aforesaid
daily work schedule for at least 2 years and Sam since
August 9, the day he started work.
On August 23, effective August 24, Respondent changed
the daily starting time of John and Sam to 8 a.m. They still
worked until 4:30. Since Respondent pays time and one-
half for all hours worked over 8 daily, this change caused
the brothers to lose at least 1 hour of overtime work each
day. This loss constituted a real impact on their terms and
conditions of employment. The change in daily overtime
working hours was accomplished unilaterally without noti-
fying or consulting with the Union. In these circumstances
I find that the Respondent on August 24 violated Section
8(a)(5) and (1) of the Act by reducing unilaterally the hours
of employment of John and Sam Rodriguez without notify-
ing or consulting with the Union. Benne Katz, etc. v. N.L.R.
B., 369 U.S. 736.
I am also of the opinion that a preponderance of the
evidence establishes that the elimination of the daily over-
time hours worked by the two Rodriguez brothers was dis-
criminatorily motivated. John Rodriguez was the Union's
leading adherent; Brown knew this and it is a fair inference
that Brown also believed that Sam Rodriguez would join his
brother John in the support of the Union.' Brown made the
decision to eliminate the regular overtime hours on August
23 immediately after he had learned that the Union intend-
ed to picket and that one of the Rodriguez brothers had
asked employee Harris if she would join the picket line.
Brown was upset when he overheard this and, as described
earlier, at that time unsuccessfully tried to get John Rodri-
guez to withdraw his support from the Union, threatened
John with economic reprisals, and invited him to quit his job
with the Company because of his union sympathies. It was
in this context that Brown on August 23 summoned John
Rodriguez into his office and told him that, effective the
next day, the regular hours for both him and his brother
Sam would be from 8 a.m. to 4:30 p.m. Brown offered no
explanation to John for this change in working hours. The
foregoing in my opinion establishes a strong prima facie case
that the elimination of the daily overtime hours of work
from Sam and John Rodriguez' work schedules was moti-
1 In this regard I note that on August 23 in notifying Sam of his termination
Brown told him, among other things, that Brown was afraid that John would
influence him about the Union
PACIFIC DIESEL PARTS COMPANY
vated by the employees' union sympathies and by a desire
to discourage the employees from continuing to support the
Union in its efforts to negotiate a contract . This inference
was strengthened at the hearing by the Respondent 's failure
to advance a satisfactory explanation for its conduct.
Respondent called three witnesses , Brown , Clarke, and
Stokes , to explain the basis for its decision to eliminate John
and Sam Rodriguez ' regular overtime . The testimony of
these witnesses on this subject tended to be vague and eva-
sive . Also they did not corroborate each other in certain
important respects , and in other important respects their
testimony was not consistent . In addition , the manner in
which they presented this testimony was not impressive. I
will not set out their testimony.
Clarke testified that he spoke to Brown about eliminating
the daily overtime hours as early as January and all through
June, July, and into August , and told Brown to get all the
employees on regular hours . Clarke's testimony on this mat-
ter was vague and evasive and at one point , in an effort to
put some flesh and blood on this testimony , was asked when
the decision to change the work schedule was reached, and
answered "that was predetermined . That was understood
ahead of time that when [Brown ] got caught up with his
work he was going to cut these people back to regular
straight hours, and that was left up to him ...but that was
understood way back ." At which point Clarke was asked,
"how was that understood , was there a conversation," and
he answered, "yes, that conversation was almost personal in
nature . I said [Brown ] I cannot go on with this thing. I'm
up to the hilt and you're up to it , and, my gosh . . . you're
67 years old . What if something happened to you? We'd
have a lot of stock out there and that I probably couldn't
get 10 cents on the dollar for."
Stokes , Brown's office clerical and secretary, testified that
in the middle of August Brown told her he felt that if there
was to be time and one-half he preferred it in the evening
when the Company needed John Rodriguez more and that
Stokes agreed with Brown . Respondent needed the employ-
ees to work overtime in the evening rather than the morning,
according to Stokes ' uncorroborated testimony , because
Respondent received lots of telephone calls for orders from
eastern customers at the end of the day . This condition,
Stokes admitted , had existed since at least January . Stokes
then testified that she did not know who had brought the
matter of overtime hours up, Brown or Stokes , and, contrary
to her initial testimony , testified that she was the person who
brought the matter up and that Brown agreed with Stokes
that under the circumstances the Company needed John
Rodriguez for overtime late in the day rather than in the
morning . It is not disputed that after the change in hours
that neither John nor Sam Rodriguez worked any overtime
at the end of the day. The employees who worked in the
shop after John and Sam were terminated worked a de
minimis amount of overtime , if any, at the end of the day.
Brown made no mention of the matters contained above
in Stokes' testimony but testified that he eliminated the
daily overtime hours at the request of Clarke . As early as
December 1971 and January and February , Brown testified
that Clarke had spoken to him about eliminating this over-
time work . Brown admitted that prior to August 23 he had
ample time to take care of the matter but, as he put it, "I
823
just hadn 't gotten to it." The only business reason offered
by Brown at the hearing to justify the elimination of the
daily overtime hours was , "I just figured that if we started
at 8 a .m. in the morning maybe I could have-if there was
any overtime , it could be on the later shift." Regarding his
reason for finally acting on this matter on August 23 Brown
testified that at lunch that day Clarke reminded him he had
previously discussed the subject with him and now the fi-
nancial situation had come to a head , that the Company did
not need the overtime , at which point Brown agreed to
eliminate the daily overtime hours . Clarke did not corrobo-
rate Brown's testimony . There was no mention of such a
discussion with Brown on August 23 included in Clarke's
extensive testimony on the particular topic . There was a
meeting on August 23 between Clarke and Brown for, as
described later, Clarke on the morning of August 23 had
met with the Union and refused to negotiate a contract with
the representatives of the Union who then told him the
Union intended to picket Respondent , and Clarke had ar-
ranged to meet with Brown later that day for the purpose
of telling him about his meeting with the Union. Brown
testified , however, that the only topic discussed at his meet-
ing with Clarke on August 23 was the change in the employ-
ees' work schedules and that nothing at all was said about
the Union. Only after further questioning did Brown reluc-
tantly admit that Clarke had mentioned the fact that the
union representative had been over to see him . Brown, in
presenting his testimony on this matter , was, in my eyes, an
unreliable witness whose testimony tended to be general,
vague, and wholly uncorroborated even as to matters where
corroboration should have been available . In any event,
even if Respondent's case-in-chief is credible , there still re-
mains unanswered the reason for Brown 's failure to elimi-
nate the regular overtime hours for a period of almost 6
months in the face of Clarke's continuous protestations and
then to act abruptly in the middle of a workweek immedi-
ately after learning of the Union's plans to picket and learn-
ing that John Rodriguez and his brother Sam would
continue to support the Union.
In the light of the foregoing , I find that Respondent on
August 24 in eliminating the daily overtime hours worked
by John and Sam Rodriguez was motivated by a belief that
they were sympathetic toward the Union and would support
the Union in its efforts to negotiate a contract with the
Respondent . Accordingly, by engaging in this conduct Re-
spondent violated Section 8(a)(3) and (1) of the Act.
2. The elimination of the practice of allowing employees'
relatives to join them in the shop for lunch
Respondent since at least 1968 had allowed friends and
relatives of employees to enter the plant to visit with them
for lunch during the one-half hour daily lunch break. Of the
three unit employees employed on August 23, only two, the
Rodriguez brothers, lunched with friends or relatives in the
shop . On August 23 Clarke, at the conclusion of his meeting
with the Union's representatives , went to the shop to meet
with Brown for lunch. Clarke has a financial investment in
the Respondent and is its secretary-treasurer but operates
his own business ; he is a CPA and only rarely becomes
involved in the day-to-day operation of the Respondent's
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business which is left to Brown, the Company's president
and general manager . August 23 was the first time Clarke
had ever been in the shop during the employees' lunch
break. While waiting in the shop for Brown to finish a
telephone conversation, Clarke noticed a woman and a
child lunching with John Rodriguez to the accompaniment
of loud music from a radio. Clarke observed that there were
metal shavings scattered throughout the shop which posed
a possible danger to the barefooted child. Clarke also ob-
served that due to the small size of the shop that customers
who transacted business during the lunch break could readi-
ly observe and hear the employees lunching with relatives
or friends. Clarke immediately told Brown that he would
have to change this situation because the Respondent's in-
surance company would not stand for nonemployees, espe-
cially children, visiting or having lunch in the shop and that
such a situation did not look good to customers, it was not
businesslike . Brown agreed to remedy the situation and that
afternoon told John Rodriguez, at the same time he told him
about the elimination of the overtime, that effective the next
day that no unauthorized persons were allowed in the shop
and, in particular, the employees' wives could not visit the
shop during the lunch break. The same afternoon a notice
signed by Brown was posted on the shop bulletin board
stating : "Effective Immediately-no unauthorized persons
allowed on the premises at any time-Employees only. "This
rule has been enforced.
General Counsel urges that the Respondent, when it de-
cided to prohibit relatives from visiting employees during
the lunch break, was motivated by unlawful considerations.
Brown 's condonation of this practice for several years,
Brown's union animus, the timing of the action coming right
after Brown learned the Union intended to picket and that
the Rodriguez brothers would not withdraw their support
from the Union, and the contemporaneous discriminatory
elimination of daily overtime hours are circumstances
which support the position of the General Counsel. But,
unlike the abrupt elimination of the daily overtime work,
the Respondent in the case of the prohibition against rela-
tives visiting at lunch adduced credible evidence, described
above, which established a legitimate business reason jus-
tifying its conduct and satisfactorily explained why it waited
until August 23 to remedy this situation. On balance, in
these circumstances , I conclude that legitimate business
considerations caused the Respondent to prohibit relatives
from entering the shop to visit for lunch and would have
done so in the absence of any union animus. Accordingly,
I shall recommend the dismissal of the portion of the com-
plaint which alleges that by engaging in this conduct Re-
spondent violated Section 8(aX3) and (1) of the Act.
General Counsel also urges that the Respondent violated
Section 8(aX5) and (1) of the Act by unilaterally discontinu-
ing the practice of allowing relatives of unit employees to
join them in the shop during the employees' lunch break. I
do not agree. Although this action was taken without prior
consultation with the Union, the evidence as found above
shows that the Respondent discontinued this past practice
because of legitimate business considerations, and there is
no showing that the changed policy had a real impact on the
employees or their working conditions? Accordingly, I con-
elude that the General Counsel has failed to sustain the
burden of proof in establishing this as a violation of Section
8(a)(5) and (1) of the Act, and I shall recommend that this
portion of the consolidated complaint be dismissed.
D. The Refusal To Bargain in Good Faith
As already indicated, by a vote of two to one the Union
in a secret ballot election was selected by the unit employees
to be their bargaining representative and the Regional Di-
rector certified the Union as such on June 19. In late June
the Union's president, John Krasnick, phoned Brown and
asked for a meeting to negotiate a contract. Brown stated
that Clarke, the Company's auditor and secretary-treasurer,
would handle the contract negotiations. On about July 5 or
6, Krasnick phoned Clarke and asked for a negotiation
meeting at which time, as Krasnick credibly testified, Clarke
said there was no need for the Company to negotiate a
contract, that he had no intention of signing a contract, the
Company did not employ enough employees, and the Com-
pany was not making enough money.
The Union on July 6 filed charges with the Board in Case
2l-CA-11092 against the Respondent alleging that the Re-
spondent had violated Section 8(a)(5) and (1) of the Act in
that it "has failed and refused to bargain in good faith with
the [Union]." On August 18, 1972, the parties executed, and
the Regional Director approved, an informal settlement
agreement signed for Respondent by Clarke. The settlement
agreement contained a nonadmission clause by which the
Respondent did not admit that it had violated the Act and
provided that the Respondent would not refuse to bargain
collectively with the Union and would upon request bargain
with the Union.
Krasnick and Clarke, following the approval of the settle-
ment agreement, arranged to meet on August 23 at 10 a.m.
at Clarke's office. The office of Clarke, who is in business
as a CPA, is not located at Respondent's plant. Krasnick
and two other union representatives, Thomas O'Leary and
Joe Henderson, arrived at Clarke's office on August 23 as
scheduled at 10 a.m. Clarke arrived 20 minutes late and
apologized, stating that he had just come from the gym
where he had been working out. The meeting, which started
about 10:20 a.m., lasted approximately 30 minutes.
Krasnick at the start expressed the thought that the
Union would like to start a good relationship with the Com-
pany and gave Clarke a copy of the Union's current con-
tract with Cummins Diesel, a firm substantially larger than
Respondent engaged in the same type of business . Krasnick
explained to Clarke that all of the items in the Cummins
contract were negotiable but that since Cummins was in the
same type of business as Respondent, that it was the
Union's normal procedure to use such a contract as the
basis for negotiations with a newly organized company.
Clarke stated that the Company did not at that time know
2 The effect of the new policy on the employees was that their relatives no
longer could eat lunch with them in the shop during the one -half-hour lunch
break nor could relatives enter the shop to hand employees hot lunches. It
is undisputed , however, that after the new policy went into effect that em-
ployees continued to eat lunch with relatives right outside the shop and
likewise continued to receive hot lunches.
PACIFIC DIESEL PARTS COMPANY
its current financial situation as it was auditing its books
and the Company was negotiating with another employer to
sell the business, so there was no sense to negotiate a con-
tract. Krasnick then suggested that for the time being the
parties should put aside the cost items and discuss noncost
items . Clarke refused, stating that he was not interested in
discussing the noncost items contained in the Cummins
contract, that he was not going to negotiate, and told the
union representatives that the only reason that he was meet-
ing with them was to get the Board off his back. Krasnick
told Clarke that with such an attitude the Union could tie
the Employer up by placing a picket line on the Company.
During the course of the meeting Clarke stated that the
Union was hitting him with a contract, the Cummins con-
tract, which covered a multimillion-dollar company which
employed many employees, whereas the Respondent em-
ployed only three or four employees and could not pay the
wages called for by the Cummins contract. Krasnick again
made it plain that everything in the Cummins contract was
negotiable, that the Union only wanted to use it simply as
a basis to start from and also pointed out that under the law
the Union because of the wage freeze could only negotiate
so much.
When it became obvious that Clarke was adamant in his
refusal to discuss any of the terms of a contract, the union
representatives left the office.
The description of the telephone conversation between
Clarke and Krasnick in July is based on Krasnick's credible
testimony. The description of the meeting between Clarke
and the Union's representatives on August 23 is based on
the credible testimony of Krasnick which is corroborated in
all important respects by the credible testimony of O'Leary.
Krasnick and O'Leary impressed me as honest and reliable
witnesses who were making a sincere effort to tell the truth.
Clarke, to the contrary, when he testified about these con-
versations, was not an impressive witness. I have rejected his
testimony whenever it conflicts with the testimony of Kras-
nick.
Ultimate Findings Regarding the Refusal
to Bargain in Good Faith
Section 8(a)(5) of the Act makes it an unfair labor prac-
tice for an employer "to refuse to bargain collectively with
the representative of his employees." Section 8(d) of the Act
defines the duty to bargain collectively as follows: "to bar-
gain collectively is the performance of the mutual obligation
of the employer and the [Union] to meet at reasonable times
and confer in good faith with respect to wages , hours, and
other terms and conditions of employment, or the negotia-
tion of an agreement.... " It is settled that an employer,
to fulfill its obligation under the law, must do more than
simply meet with the union's representatives but must con-
sider the union's proposals and make a good-faith effort to
reach an agreement . See, e.g., N.L.R.B. v. Reed & Prince
Manufacturing Company, 205 F.2d 131, 134-135 (C.A. 1,
1953). The Respondent when it met with the Union's negoti-
ators on August 23 refused to consider the Union's propos-
als and did not make a good-faith effort to reach an
agreement . It is plain, and I find, that Respondent on Au-
gust 23 refused to discuss, as requested by the Union, the
825
terms of a collective-bargaining agreement, and by engag-
ing in this conduct violated Section 8(a)(5) and (1) of the
Act. I find further that Respondent on about July 5 refused
to meet with the representatives of the Union to negotiate
the terms of a contract and that by engaging in this conduct
violated Section 8(a)(5) and (1) of the Act .3
E. The Discharge of John Rodriguez
John Rodriguez worked continuously for Respondent for
3 years and 10 months from October 1968 until his termina-
tion on August 30. General Counsel contends he was dis-
charged because of his union sympathies and activities.
The events immediately leading up to his discharge and
the reasons advanced by Respondent at the hearing for the
discharge are now set out and discussed. On Thursday,
August 24, Rodriguez was absent from work for 3 1/2
hours. On Friday, August 25, he was absent 1 3/4 hours,
and on Monday, August 28, he was 25 minutes late for
work. On all of these occasions Rodriguez had notified
Brown ahead of time that he was either going to be tardy
or was going to absent himself from the shop. Brown did not
indicate that he was unhappy; he voiced no objection. Then
on Tuesday, August 29, at noon, Rodriguez told Brown that
he had to leave work to attend some business and would
return as soon as he completed the business. Brown said
"ok." The business involved his efforts to get custody of one
of his children which necessitated a trip to the city police
department which in turn referred him to the city welfare
department where he had to wait to see a social worker. By
the time he finished it was after working hours so he did not
return to the shop nor did he call in to tell Brown that he
had been delayed 4 The next morning, August 30, John
Rodriguez' wife as usual drove him to work and stopped the
car at the rear of the shop and, as Rodriguez left the car, he
was met by Brown who told him to have his wife wait for
him, explaining he was terminated. Rodriguez asked why he
was terminated and Brown answered, "I'm not going to do
your [sic] work for you and I'm not going to have the
Union."5
The decision to discharge was made by Brown, who testi-
fied that the only reason for the discharge was "I 'd had it
7 The settlement agreement here involved did not, in the circumstances of
this case , bar litigation of the presettlement 8(a)(1) and (5) allegations. It is
well settled that independent or continuing violations of the Act constitute
a breach of the settlement agreement and justify the Regional Director in
setting aside the settlement agreement and proceeding with a complaint
which covers both presettlement and postsettlement violations . Here, I have
found , as alleged in the complaint, that Respondent breached the settlement
agreement by refusing to bargain on August 23 and by unilaterally ehmmat-
inp the employees' daily overtime hours on August 24.
The foregoing facts pertaining to the events of August 24 through August
29 are based on the credible testimony of Rodriguez who in my eyes was a
trustworthy-witness. Brown on these events was not, and I have rejected his
testimony whenever it conflicts with Rodriguez '; particularly Brown 's testi-
mony that on August 29 Rodriguez told him he would return to work at I
p.m.
S Based on the credible testimony of John Rodriguez , who was corroborat-
ed on all important details by his wife. Mr. and Mrs . John Rodriguez im-
pressed me as truthful and reliable witnesses . I received the opposite
impression from Brown and Georgette Stokes, who testified for Respondent
about the termination conversation . I have rejected their testimony wherever
it conflicts with the Rodriguezes'.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with his tardiness and his absenteeism and not being there
when I needed him ." It is true that, as indicated above, John
Rodriguez was absent and late immediately before his dis-
charge and this did, as Brown told Rodriguez when he
discharged him, make it necessary for Brown to do his work.
But this does not end the matter, for throughout almost 4
years of employment Rodriguez consistently was absent
and late for work, and consistently during this period his
conduct inconvienced Brown and others by causing them to
do his work . Indeed , Brown testified that during these 4
years Rodriguez, when he was absent from work most of the
time, never even had the courtesy to tell someone at the
Company he was going to be absent. Brown, however, ac-
cording to Rodriguez' testimony, never warned, criticized,
or threatened him with discipline because of absenteeism or
tardiness . I believe Rodriguez, who impressed me as an
honest witness . Brown's testimony to the contrary is reject-
ed. He was not an impressive witness in manner and demea-
nor when he testified on this point. Also, the record as a
whole casts suspicion on his testimony . He testified that, in
late January, "I told [Rodriguez] it was getting to the point
where I would not tolerate [Rodriguez' absenteeism and
tardiness] any more ." Shortly thereafter Rodriguez, from
the week ending February 25 through the week ending
March 24, was either late or absent as follows: Week ending
February 25, late 2 1/4 hours, late 4 1/2 hours, left early
2 1 /2 hours, and absent I day; week ending March 3, absent
I day and late 15 minutes on another day; week ending
March 10, absent 3 days; week ending March 17, late 15
minutes 1 day, and left work at 8:30 and remained absent
for the remainder of the day; and week ending March 24,
absent 4 days. Despite the alleged warning by Brown in
January that he would not tolerate any more absences or
tardiness, Brown was not disciplined , let alone discharged,
for engaging in this subsequent conduct which took place
before Brown learned of his union sympathies and activi-
ties. In short, Brown prior to August 30 for a period of
almost 4 years condoned Rodriguez' habit of coming in late
and of being absent from work despite the inconvenience it
caused Respondent. Brown acknowledged this at the hear-
ing and testified that the reason he did not discharge Rodri-
guez before August 30 was "I guess I was just soft -hearted."
Perhaps Brown is a soft-hearted individual but the record
establishes that the reason he allowed Rodriguez to work
despite his habit of missing work rested in large part on the
fact that he regarded Rodriguez as a valued employee and
as a friend. Thus, it is undisputed that Rodriguez was a
"good worker," that as he testified Brown was his friend,
that Brown loaned him money and the use of the company
truck, went to Mexico with Rodriguez and visited in Mexico
with Rodriguez and his family , and that as late as June
granted Rodriguez a 50-cent-an-hour increase in pay.
To sum up, the conduct which Brown says resulted in
Rodriguez' discharge was no different than the conduct
which Brown had allowed for almost 4 years without criti-
cism . Based on the foregoing , I find that the reason ad-
vanced for Rodriguez' discharge was not the real reason and
further find that when the discharge is viewed in its total
context, that a preponderance of the evidence establishes
that Rodriguez ' discharge was motivated in substantial part
because of his union activities and sympathies . I will now
set out and discuss the circumstances which support this
conclusion.
John Rodriguez was the employee responsible for the
Union's organization of the Company's employees. After
the Union won the election, he openly while at work indi-
cated his support for the Union. In particular, after the
Respondent on or about July 5 refused to meet with the
Union to negotiate a contract, Rodriguez sang a song at
work which expressed the view that the Union was going to
picket and take over the Company. This upset Brown, who
previously, before the election, had threatened Rodriguez
with economic reprisals if he discovered that Rodriguez had
anything to do with the Union. Then, on August 23, Rodri-
guez attended the negotiation meeting at which Clarke re-
fused to discuss the terms of a contract with the union
representatives. Rodriguez entered the room where the
meeting was being held during the last 5 minutes and was
observed by Clarke who at the end of the meeting testified
he told the union representatives:
I want to tell you again that we cannot tolerate-
there is no way we can stay in business and tolerate
crisis after crisis with John Rodriguez. I want you to
understand that. So if you really want to do him a
service, you should warn him that we cannot allow any
more of these crises.
Rodriguez' "crisis" referred to by Clarke is absenteeism and
tardiness. But there is no evidence that immediately prior to
Clarke's outburst that Rodriguez had engaged in such con-
duct which warranted the warning. Clarke did not explain
at the hearing what prompted him at that particular mo-
ment to abruptly warn the union representatives about Ro-
driguez. In comparison with his past history of employment,
Rodriguez' record since about April had so greatly im-
proved that the warning was uncalled for as Clarke in his
later testimony, set out in the margin, in effect admitted .6
Under the circumstances, I am convinced and find that
Clarke's outburst directed against Rodriguez at the negotia-
tion meeting on August 23 was the result of Respondent's
animus against Rodriguez because he was actively support-
ing the Union and had attended the negotiation meeting. At
the conclusion of the negotiation meeting on August 23,
Clarke told Brown about the meeting with the Union and
warned Brown that the Union had said it was going to
6 Clarke later in his testimony attempted to demonstrate that the reason
Respondent condoned Rodriguez ' absenteeism was that he recently had
improved . Clarke testified that he had shown substantial improvement from
January through July up to August 23 Specifically , Clarke testified that from
February through May "he made probably the best improvement he ever
did" which improvement continued into June and July . As noted above,
Respondent's records indicate that between late February and late March,
Rodriguez ' record for absenteeism was probably worse than ever. In any
event , Clarke, who was representing Respondent and questioning himself,
suddenly shifted back to his conversation with the "one thing you did do is
you've got him coming to work and you've got him coming to work on time. "
Plainly this does not square with his earlier testimony , set out above, and,
when he gave this testimony , I received the distinct impression that it was
contrived in an effort to make his earlier testimony consistent with the fact
that as of August 23 Rodriguez had shown substantial improvement in his
lateness and absenteeism As I have indicated earlier, Clarke was not an
impressive witness He impressed me as more interested in justifying the
Respondent's conduct than in telling the truth. I have not credited his testi-
mony where it is not internally consistent or has been contradicted by the
testimony of other witnesses
PACIFIC DIESEL PARTS COMPANY 827
picket the Company. Brown later that afternoon testified he
overheard John Rodriguez ask employee Sue. Harris "are
you going to picket" and Harris answered "no."7 Brown
testified this upset him.8 He immediately confronted John
Rodriguez and, as previously found, expressed the view that
John was responsible for the Union, asked him to "kick the
Union out" and, when John refused to do this, Brown
threatened him with reprisal, stating "keep it up, buddy. I'm
telling you. I'm warning you, I've had just about as much
as I'm going to take from you," and that if Rodriguez want-
ed the Union, he should quit the Company's employ and go
work in a union plant.
To recapitulate, Rodriguez was the Union's spearhead
and Brown knew this. When Brown learned that the Union
intended to picket the Company over its refusal to negotiate
the terms of a contract, Brown tried to get Rodriguez to
withdraw his support from the Union. Rodriguez refused
and Brown thereafter , to discourage Rodriguez from sup-
porting the Union, threatened him with reprisals, invited
him to quit his employment, eliminated his daily overtime
work, and finally discharged him ostensibly for the type of
conduct which he had consistently engaged in without criti-
cism by Brown throughout his almost 4 years of employ-
ment . Finally , in explaining to Rodriguez his reasons for
discharging him, Brown, among other things, told him he
was discharged for the reason that "I 'm not going to have
the Union."
In the light of the foregoing and on all the record, I
conclude that the Respondent was motivated to discharge
John Rodriguez not for the reason it asserts, but because of
Rodriguez' leading part in the Union's organizational ef-
forts and his refusal to withdraw his support for the Union.
Accordingly, I find that the Respondent violated Section
8(a)(3) and (1) of the Act by its discharge of John Rodriguez
on August 30.
F. The Discharge of Sam Rodriguez
Sam Rodriguez was employed by Respondent from Au-
gust 9 to August 25 when he was discharged. The General
Counsel contends he was discharged because the Respon-
dent believed he was a union adherent.
Sam Rodriguez is a gardener by profession. He went to
the Company with a friend, Alice Alvarado, in late July and
asked Brown for a job. Brown stated that he could not hire
anyone because of all the trouble he was having with John
Rodriguez and the Union.'
On August 8, Sam Rodriguez returned to the plant with
Alvarado and again asked Brown for a job, stating that he
had been offered a good gardening job which was not yet
7 As indicated earlier , it was Sam Rodriguez who questioned Harris. Both
brothers were together when Sam spoke to Harris and under the circumstan-
ces it is reasonable that Brown could believe it was John who spoke to Harris.
Brown 's subsequent reaction (he confronted John and not Sam about the
matter) reinforces his testimony that he believed it was John Rodriguez who
asked Harris if she was going to picket.
8 I reject Brown 's testimony that he was upset because he felt John Rodri-
guez was harrassing the employees . The conversation with Harris, set out
above in its entirety, clearly does not constitute harrassment and at most
lasted only a matter of seconds . I find that Brown was upset because he
believed that John Rodriguez was attempting to enlist the support of Harris
for the Union against the Company.
9 Based on the undenied testimony of Alvarado.
available and he needed a few weeks' work. Brown stated
he could help Rodriguez out since he had a couple of weeks'
work that he needed done. The foregoing is based on
Brown's credible testimony. Rodriguez testified that Brown
stated he really had no work for him but to help him out
would give him a couple of weeks' work. Neither Alvarado
nor Rodriguez during direct examination testified that any-
thing was said about the gardening job during the conversa-
tion. Only reluctantly did Rodriguez on cross-examination
admit that either during this conversation or shortly after
did he tell Brown that he was waiting for his gardening job
"to open up again ." Rodriguez also testified that Brown said
he could not take a chance on hiring him because of the
union activities and only agreed to hire him after Rodriguez
gave his assurances he did not care about the Union. Alva-
rado did not corroborate Rodriguez. Brown credibly denied
that there was any mention of the Union during this conver-
sation . Rodriguez and Alvarado, when they testified about
this conversation, did not impress me as either reliable or
trustworthy and I have rejected their testimony.
The credible testimony of Georgette Stokes and Brown
establishes that Respondent when it hired Rodriguez had no
need for another permanent employee but that he was hired
to crate and truck to the junkyard a large amount of scrap
material which had accumulated and to uncrate and inven-
tory an order recently received from one of the Company's
Canadian suppliers. Indeed, Sam Rodriguez reluctantly ad-
mitted that he knew that he had only been hired for some
special work. When asked, "did [Brown] give you any idea
at all as to why he needed you for only two weeks," Rodri-
guez answered , "No. He had some junk that he had to get
rid of, and I had a driver's license; I could drive the truck."
In fact, from August 9 to Friday, August 18, he spent nearly
all of his time working on the scrap and the Canadian order.
By Monday, August 21, he was almost all caught up on
these tasks and from Monday, August 21, did the normal
work in the shop, i.e., working in the machine shop and
warehouse and delivering.
On August 23 at the end of the workday , Brown called
Sam Rodriguez into his office and told him he was terminat-
ed. Quoting Rodriguez, whose testimony is undenied,
Brown at this time said:
[Brown] said I was a good worker and that he would
like to keep me on because-I was hired as temporary
help and he would like to keep me on, but things didn't
look too good with the Company and with the Union;
and he was going to have to let me go, that he was
afraid my brother John would influence me like he did
my younger brother Danny with the Union. And he
said they could not take a chance. They would have to
let me go . He said he would hate to do it, but seeing
the way things were, he would have to let me go. And
he said, "I don't know how things are right now, but
you come in tomorrow. If things go okay, you can work
the rest of the week, . . . if there was no trouble the
following day . . . that he would let me finish out the
week...."
Rodriguez worked the remaining 2 days and on Friday,
August 25, at the end of the day Brown gave him his final
check, and told him he was very good worker and that
"maybe" after the stuff with the Union blew over, if Rodri-
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guez needed a job to come back and he would help him; and
that if Brown "ever needed [him] again , he'd let [him] know
because he had [his] address."
It is undisputed that on August 9 in hiring Rodriguez it
was the intent of Brown , understood by Rodriguez, that his
tenure of employment was to be only temporary for a cou-
ple of weeks . There is no allegation in the complaint nor
does the evidence establish that Rodriguez ' hire as a tempo-
rary, rather than as a permanent , employee was unlawfully
motivated . The evidence does not establish that subsequent
to Rodriguez' hire Brown decided to retain him as a perma-
nent employee . Nor is the evidence sufficient to demon-
strate that the reason Brown did not retain Rodriguez as a
permanent employee was because of a belief that he would
support the Union. In this regard I have carefully consid-
ered the fact that 2 days before Rodriguez' discharge Brown
hired a permanent employee to perform work that Rodri-
guez could have performed, that Brown regarded Rodriguez
as a good worker , and that Brown who was hostile to the
Union terminated Rodriguez immediately after learning
that the Union intended to picket and believed that Rodri-
guez, like his brother John, would support the Union. These
are impressive circumstances which point to a relationship
between Brown's union animus and the termination of Sam
Rodriguez, but by themselves are not conclusive where, as
here, some other legitimate explanation is advanced for the
discharge . Brown credibly testified that the reason he did
not retain Rodriguez for the permanent job rather than hire
another employee was because of Brown 's belief that Sam
Rodriguez, who was a gardener by trade, as soon as the
opportunity presented itself would quit Respondent and
return to his gardening work. It was, under the circumstan-
ces, too risky to hire him as a permanent employee. Not only
did Brown impress me as being sincere when he gave this
testimony, but it is supported by the record as a whole.
Thus, as indicated above, when Brown hired Sam Rodri-
guez, he was told by Rodriguez that he had been offered a
good gardening job which Rodriguez was waiting for and
just needed a few weeks' work. Based on the foregoing, I
find that in discharging Sam Rodriguez the Respondent was
not discriminatorily motivated . Accordingly, I shall recom-
mend that this portion of the complaint be dismissed. In
reaching this conclusion I have carefully considered the fact
that Brown 's reason for the discharge given to Sam Rodri-
guez may be viewed as an indication that Brown 's belief that
Sam would support the Union played a part in his termina-
tion. But, in view of the persuasive character of
Respondent's assigned reasons for the discharge , I believe
that probative weight as an admission against interest
should not be given to Brown 's termination statement to
Sam Rodriguez . In my opinion , what we have here is a
situation where a statement in the form of an admission is
so patently at odds with other clearly established facts that
no effective force can be given it.
G. The Discharge of Danny Rodriguez
Danny Rodriguez was employed by Respondent from
December 15 , 1971, until July 26 at which time as the result
of an auto accident he was hospitalized . The General Coun-
sel argues that Respondent refused for unlawful reasons to
reemploy him when he recovered from his accident.
Respondent late in December 1971 moved its place of
business and for this purpose hired several employees. One
of them was Danny Rodriguez who was specifically told by
Brown that he was hired as a temporary employee to help
with the move and that when the move was completed,
would in all probability be terminated . Brown also, as he
credibly testified, explained to Rodriguez that his work con-
nected with the move would not end with the physical move
but would include the unpacking and reshelving of the parts
and supplies at the new location . Upon the completion of
the physical move in January, all the temporary employees,
except Danny Rodriguez , were terminated. Rodriguez re-
mained and unpacked and shelved the parts which had been
moved over to the new location . He testified this was a "big
job." At the time of his accident , July 26, almost 50 percent
of his time at work was spent shelving parts and supplies
and the majority "building tubes."
Danny Rodriguez did not have a license to drive a motor
vehicle. Nevertheless, on July 26 he took his brother's auto-
mobile and was involved in an accident which hospitalized
him and placed him on disability until November 23. In late
September Rodriguez phoned Brown and told him he would
be getting his release for work in the near future and would
be ready to return to work. Brown told him that after he
finished collecting his disability he should apply for unem-
ployment payments , explaining that Rodriguez had been
absent from work too long and that Brown had had to get
someone to take his place.
On November 28, the Union amended its charges filed
against Respondent to allege that Danny Rodriguez had
been discriminatorily discharged. Thereafter, at the sugges-
tion of a Board agent , Rodriguez contacted Respondent
and unsuccessfully attempted to get his job back.
Brown prior to his conversation in late September with
Rodriguez had been informed that Rodriguez at the time he
had been involved in the accident had taken his brother's
auto without permission , and Brown also had been in-
formed by his secretary that in filling out Rodriguez' disa-
bility forms for the State of California that she had to go
back 13 weeks in Rodriguez ' employment before she was
able to find 3 full weeks (40 hours) of employment, Appar-
ently a requirement to collect disability.
Brown at the hearing testified that he refused to reemploy
Danny Rodriguez because of his record of absenteeism, out
of his concern that perhaps Rodriguez without permission
might take one of the Company's motor vehicles, and be-
cause the sales on the tubes which Rodriguez had been
working on had fallen off 10 and the great majority of the
parts moved from the old location had been shelved so that
it was not necessary that the remainder be unpacked at that
time."
I reach the conclusion that the termination or refusal to
reemploy Danny Rodriguez was not unlawful . I am moti-
vated by several factors. In not holding a job open for
Rodriguez , the Respondent 's conduct was not unusual or
10 This testimony was not contradicted
11 Stokes credibly testified that in about July or August the supplies and
parts from the old location had been substantially unpacked and shelved so
that they were able to operate efficiently at the new location.
PACIFIC DIESEL PARTS COMPANY 829
unreasonable considering the fact that Rodriguez was an
employee of only a short tenure who had been hired on a
temporary basis. The work that Rodriguez had been per-
forming at the time of his accident was either substantially
done (shelving) or had fallen off because of a lack of sales
(tubes). There is no showing that at the time in November
when he was available for work that Respondent had a job
opening for Rodriguez. And finally, certain information,
described above , had come to Brown's attention after the
accident which caused him to believe that Rodriguez would
not be a satisfactory employee. I realize that Brown was
hostile to the Union and knew that Danny Rodriguez was
one of the two employees who had voted for the Union and
during his employment regarded him as a good employee
but, on balance, I cannot say that the evidence preponder-
ates in favor of a finding that in refusing to reemploy or in
terminating Rodriguez, Respondent was discriminatorily
motivated. Accordingly, I will recommend that this portion
of the consolidated complaint be dismissed.
CONCLUSIONS OF LAW
1. Pacific Diesel Parts Company, the Respondent, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Teamsters, Automotive Workers Local 495, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All shipping and receiving employees, warehousemen
and truckdrivers employed by Respondent, excluding
all other employees, including office clerical employ-
ees, guards , professional employees and supervisors as
defined in the Act.
4. As certified by the National Labor Relations Board on
June 19, 1972, the Union is the exclusive representative of
the employees in the aforesaid bargaining unit for the pur-
pose of collective bargaining with respect to rates of pay,
hours of employment, and other terms and conditions of
employment.
5. By interrogating employees about their union sympa-
thies and activities; by threatening employees with econom-
ic reprisals, including contracting out their work and closing
the shop, if they supported the Union; and by suggesting
that an employee quit his employment with Respondent if
he continued to support the Union, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
6. By discharging employee John Rodriguez on August
30, 1972, because of his union activities and sympathies and
to discourage employees from supporting the Union, the
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
7. By unilaterally discontinuing on August 24, 1972, the
daily overtime hours of work of employees John and Sam
Rodriguez, without consulting or bargaining with the Union
on the matter, and because of the union sympathies and
activities of the employees, Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(1),
(3) and (5) of the Act.
8. By refusing to bargain collectively in good faith con-
cerning rates of pay, hours of employment and other terms
and conditions of employment with the Union on and after
July 5, 1972, and on and after August 23, 1972, as the
exclusive representative of its employees in the aforesaid
bargaining unit, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to recom-
mend the Respondent cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged John
Rodriquez, I find it necessary to recommend that the Re-
spondent offer him full reinstatement, with backpay com-
puted on a quarterly basis plus interest at 6 percent per
annum as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716, from the date of discharge to the date reinstatement is
offered.
Having found that Respondent discriminatorily and uni-
laterally discontinued the daily overtime work of Sam Ro-
driguez and John Rodriguez, I shall recommend that the
Respondent make them whole for loss of earnings suffered
by reason of this illegal action with backpay in the case of
Sam Rodriguez terminating on the date of his lawful dis-
charge and in the case of John Rodriguez continuing from
August 24,1972, until the date that reinstatement with the
daily overtime is offered to him. Backpay shall be computed
in the manner described earlier in this section.
To remedy Respondent's refusal to bargain, I shall re-
commend that it cease and desist therefrom and that it
bargain collectively with the Union, upon request, and that
it cease and desist from making any changes in the terms
and conditions of employment of the employees in the ap-
propriate unit without first discussing and bargaining with
the Union on such matters.
In order to insure that the employees will be accorded the
statutorily prescribed services of their selected bargaining
agent for the period provided by law, I recommend that the
initial year of certification begin on the date that Respon-
dent commences to bargain in good faith with the Union as
the recognized bargaining representative in the appropriate
unit. Southern Paper Box Company, 193 NLRB 881.
As the unfair labor practices committed by the Respon-
dent were of a character which goes to the very heart of the
Act, I shall recommend an order requiring the Respondent
to cease and desist therefrom and to cease and desist from
infringing in any other manner upon the rights of employees
guaranteed by Section 7 of the Act.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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:
ORDER 12
Respondent , Pacific Diesel Parts Company , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees about their activities and
membership in Teamsters , Automotive Workers Local 495,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, or any other labor organi-
zation.
(b) Threatening employees with economic reprisals, in-
cluding closing the plant or contracting out the employees'
work , if the employees support the above-named Union or
any other labor organization.
(c) Inviting or suggesting to employees that they seek
employment elsewhere if they desire to assist or support the
above-named Union or any other labor organization.
(d) Discouraging membership in or activities on behalf
of the above-named Union or any other labor organization
by discharging employees , or reducing their hours of em-
ployment or otherwise discriminating against them in any
manner with regard to their hire and tenure of employment
or any term or condition of employment because of their
union sympathies or activities.
(e) Refusing to bargain collectively in good faith con-
cerning rates of pay, hours of employment and other terms
or conditions of employment with the above -named Union,
as the exclusive representative of its employees in the appro-
priate unit described in paragraph 3 of the section entitled
"Conclusions of Law" above.
(f) Refusing to bargain collectively with the above-
named Union with respect to the employees' daily overtime
work or any other term or condition of employment by
unilaterally eliminating daily overtime work or unilaterally
changing any term or condition of employment of its em-
ployees in the appropriate unit without prior consultation
and bargaining with the above-named Union.
(g) In any other manner interfering with , restraining or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make John Rodriguez whole for any loss of earnings
suffered by reason of his discharge , in the manner set forth
in the section herein entitled "Remedy."
(b) Make John Rodriguez and Sam Rodriguez whole, as
provided in the section herein entitled "Remedy," for the
loss of pay they suffered as a result of Respondent unlawful-
ly eliminating their daily overtime work on August 24, 1972.
(c) Offer John Rodriguez immediate and full reinstate-
ment to his former position or, if this position no longer
exists , to a substantially equivalent position , without preju-
dice to seniority or other rights and privileges.
(d) Upon request , bargain collectively in good faith con-
cerning rates of pay , hours of employment and other terms
and conditions of employment with the above-named
Union as the exclusive representative of its employees in the
appropriate unit and embody in a signed agreement any
understanding reached. Regard the Union upon com-
mencement of bargaining and for 12 months thereafter as
if the initial year of certification has not expired.
(e) Post at its place of business in South Gate, California,
copies of the attached notice marked "Appendix." 13 Copies
of said notice, on forms provided by the Regional Director
for Region 21, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 21, in writ-
ing, withing 20 days from the date of this Order what steps
have been taken to comply herewith.
(g) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
IT IS FURTHER ORDERED that the consolidated complaint be,
and it hereby is, dismissed insofar as it alleges that Respon-
dent violated the Act otherwise than as found herein.
i2 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
13 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
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give evi-
dence, the National Labor Relations Board found that we,
Pacific Diesel Parts Company, violated the National Labor
Relations Act, and ordered us to post this notice and to keep
our word about what we say in this notice.
The law gives you the right:
To form, join or help unions
To choose a union to represent you in bargaining
with us
To act together for your common interest or protec-
tion, and
PACIFIC DIESEL PARTS COMPANY 831
To refuse to participate in any or all of these things.
The Board has ordered us to promise you that:
WE WILL NOT in any manner interfere with your rights.
WE WILL NOT ask you whether you are a member of,
sympathetic toward , or helping Teamsters , Automotive
Workers Local 495 , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of
America, or any other union.
WE WILL NOT threaten you with economic reprisals,
including closing the shop or contracting out your
work , if you join or assist the above-named Union or
any other labor organization.
WE WILL NOT suggest that you get a job with another
employer if you want to join or assist the above-named
Union, or any other labor organization.
WE WILL NOT refuse to bargain collectively in good
faith with the above-named Union concerning your
rates of pay, hours of employment , and other terms and
conditions of employment , if you are in the appropriate
bargaining unit described below , and will not without
bargaining with the above -named Union unilaterally
eliminate daily overtime work or change any term or
condition of your employment if you are in the appro-
priate unit.
The National Labor Relations Board found that we vio-
lated the law by discharging John Rodriguez.
The National Labor Relations Board also found that we
violated the law by eliminating the daily overtime work of
John Rodriguez and Sam Rodriguez.
WE WILL offer to reinstate John Rodriguez to his for-
mer job without any loss of seniority or other rights and
will reimburse him for any loss of earnings he may have
suffered because we discharged him, together with 6-
percent interest.
WE WILL make John Rodriguez and Sam Rodriguez
whole for their loss of wages resulting from our unlaw-
fully discontinuing their daily overtime work on Au-
gust 24 , 1972, together with 6-percent interest.
WE WILL, upon request , meet at reasonable times and
bargain collectively in good faith concerning rates of
pay, hours of employment , and other terms and condi-
tions of employment with the above -named Union as
your exclusive representative in the appropriate bar-
gaining unit , and, if an understanding is reached, we
will sign a contract containing such understanding.
WE WILL regard the above -named Union upon com-
mencement of bargaining and for 12 months thereafter
as if the initial year of certification has not expired.
The appropriate bargaining unit is:
All shipping and receiving employees , warehouse-
men and truckdrivers employed by us, excluding all
other employees , including office clerical employees,
guards , professional employees and supervisors as
defined in the Act.
Dated By
PACIFIC DIESEL PARTS
COMPANY
(Employer)
(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 directed to the Board's Office , Eastern
Columbia Building, 849 South Broaday , Los Angeles, Cali-
fornia 90014, Telephone 213-688-5229.