Padre Dodge

National Labor Relations Board - Board Decisions

Aug 6, 1973

205 N.L.R.B. 252 (N.L.R.B. 1973)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Padre Dodge and International Association of Machin-
ists and Aerospace Workers , AFL-CIO. Case 21-
CA-11108
August 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 16, 1973, Administrative Law Judge
George H. O'Brien issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, but
only to the extent consistent with our Decision herein.
We disagree with the Administrative Law Judge's
conclusion that the Respondent did not violate either
Section 8(a)(1) or (3) of the Act.
The 8(a)(1) Violations
1. Contrary to the Administrative Law Judge, we
find that Respondent violated Section 8(a)(1) of the
Act through Service Manager English's comment to
employee Van Sickle, the Union's shop committee-
man, on June 27, 1972. At that time English stated
that Respondent knew Van Sickle was a union organ-
izer and rhetorically asked him why, if he was not
happy on the job, did he continue his employment.
Such remarks clearly convey to an employee the
threat that management considers engaging in union
activities and continued employment essentially in-
compatible. They also convey to the employee the'
impression that his union activities are being kept
under surveillance. They, thus, come within that inter-
ference and coercion proscribed by Section 8(a)(1).'
2. We also find that President Calabrese's ques-
tioning of, and comments to, Jastrzembski on the
morning of August 3 violated Section 8(a)(1). The
meeting on that date was ostensibly held for the pur-
pose of inquiring into Jastrzembski's alleged union
activities on company time the previous day, despite
the fact that almost immediately after such suspected
i Compare Gem Knits, Inc, 174 NLRB 449, 452, also Rumor Dress Corp,
Samuel Todaro Individually, 175 NLRB 320, 327-328, Florida Sugar Corpora-
tion, 142 NLRB 460, 462
activities had occurred, Shop Manager English had
questioned Jastrzembski about the matter. The inci-
dent, as Jastrzembski had explained without chal-
lenge to English, arose when fellow employee Pittman
talked to Jastrzembski about insurance that Pittman
sold on the side. In response, Jastrzembski had told
Pittman he was at the time uninterested because he
would be able to get insurance through the Union if
it managed to organize the shop. In light of that expla-
nation, it must then have been as clear to English, as
to us now, that the incident between the two employ-
ees had not involved union activity in any meaningful
sense of that term, if at all. Thus, as the Respondent
already had full knowledge of what appears to have
been a rather innocent episode, we see no plausible or
convincing business reason explaining its interest in
further pursuing the August 2 matter by bringing Jas-
trzembski before its president for questioning.2
Furthermore, the meeting was not limited to exp-
loring that incident. Rather, having first inquired into
the matter, Calabrese proceeded to question Jas-
trzembski about the union health plan, and then
warned him against engaging in union activities dur-
ing working hours. He also told Jastrzembski there
was enough discord in the shop and that he would see
there was not any more. He concluded by warning
Jastrzembski to forget about his "other activities" and
get his productivity up. Clearly, in the circumstances
and absent any contrary explanation, the "discord"
and "other activities" were union-related "discord"
and "activities." Thus we find that these latter state-
ments by Calabrese were but thinly veiled threats to
take some unspecified action against any increase in
union activities in the shop and against Jastrzembski
for his activities on behalf of the Union.
In view of the foregoing, we are led to the conclu-
sion that Calabrese seized upon the August 2 Jas-
trzembski-Pittman incident as a convenient cover to
harass and coerce Jastrzembski with respect to his
engaging in legitimate union activities. Accordingly,
we find that Calabrese, by confronting Jastrzembski
concerning the already explored August 2 incident
and by the thinly veiled threats described above, in-
terfered with, restrained, and coerced Jastrzembski
with respect to his protected concerted activities and
thereby violated Section 8(a)(1) of the Act?
2 Especially would this conclusion seem warranted in vir,w of the facts, that
(1) Jastrzembski was, as English knew, on his lunchtime when he talked to
Pittman and (2) in any event Respondent had no rule , insofar as appears,
against employees talking with one another at any time
3 We find no merit to the General Counsel's cositention that Jastrzembski
was threatened with discharge by Pitarro, the foreman, when he told him that
"You've had it," during the course of a heated argument between Pitarro and
a union representative stemming from the latter's alleged trespass on compa-
ny property We note that Pitarro first made the comment to the union agent
and only repeated it to Jastrzembski when the employee tried to intervene
In these circumstances , we are unwilling to ascribe anv meaning to the
statement that could be construed as i,iterference w;''n an employee's Sec 7
205 NLRB No. 39
PADRE DODGE 253
The 8(a)(3) Violation
The General Counsel contends that Van Sickle's
discharge on June 29 was unlawful. As noted above,
Van Sickle was the union committeeman in the shop,
openly engaged in union activities, and on June 25
had been the object of English's unlawful query as to
why he continued his employment if he was unhappy
with his place of work. The Administrative Law Judge
nevertheless found no violation concluding that Van
Sickle was discharged, not for union-related reasons,
but (1) because his production had fallen off; (2) be-
cause of his insulting and contemptuous scatological
remarks to English when questioned about a drop in
productivity on June 22; (3) because he had per-
formed unauthorized work, i.e., replaced, rather than
just inspected, a pump seal; and (4) because he had
attempted to cover this alleged dereliction by writing
the word "replace" on his work order.
A review of the record, however, discloses that Van
Sickle's termination notice cited only "unauthorized
work" as the ground for the discharge; English and
Shop Foreman Pitarro, who together decided on the
discharge, both testified that the only ground for their
action was Van Sickle's performing the "unauthorized
work" described above in item (3). Consequently, we
find the Administrative Law Judge erred in citing
items (1), (2), and (4), above, as proper economic rea-
sons for Van Sickle's discharge, since management
did not rely on them as reasons for its action.4
Furthermore, even considreed on their merits, the
reasons as relied on by the Adminsitrative Law Judge
do not support his result. Thus, with respect to pro-
ductivity, the record does show that there had been a
fall in Van Sickle's productivity during the spring of
1972, that Calabrese had talked to him about it on
May 12, and that English had raised the matter again
on June 22. Nevertheless, at the time of his discharge,
Van Sickle's productivity had, as English's records
showed, begun to increase from its low reached
around June 1.
As for the scatological comments thrown at English
as a result of their June 22 talk on productivity, Van
Sickle discussed these along with other complaints
rights Likewise , we find no merit to the General Counsel's contention that
English unlawfully interrogated Jastrzembski shortly thereafter when, in the
presence of a policeman , English inquired as to what the earlier incident
between the union agent, Pitarro , and Jastrzembski was all about First, we
note that at the time Jastrzembski's status as an employee was in doubt since
he had previously quit his job , second the inquiries of English can be inter-
preted as involving an effort on the part of the Respondent to ascertain facts
to aid the police in an investigation into the conduct of nonemployees coming
onto Respondent 's property without authorization
4 Calabrese did testify that Van Sickle was discharged not "for bust] unau-
thorized work It was a series of events that Van Sickle was terminated for "
However, he did not specify what the events were and, as indicated, his
testimony was flatly at variance with that of English and Pitarro.
concerning him with Calabrese on the afternoon of
the day they were made. In the course of this discus-
sion, Van Sickle promised to change his ways and try
to get along. This apparently was acceptable to Cala-
brese and ended the matter insofar as Respondent
was concerned, as Van Sickle was permitted to return
to work. Furthermore, there is no evidence that he
engaged in any type of conduct for which he had been
criticized, and which would have given Respondent
cause to reconsider the incident, between the date of
this discussion with Calabrese and the date of his
discharge.
Finally, as for Van Sickle's writing in the word
"replaced" on his work order form, there is no basis
whatsoever for concluding, as did the Administrative
Law Judge, that this was an attempt to cover up an
alleged dereliction in replacing the seal. Van Sickle
did not strike the work "check" nor did he in any
other manner seek to make it appear that his work
order had specifically directed him to replace the seal.
In fact, he readily conceded, when asked by English,
that he had written in the word "replace." Rightly or
wrongly he had replaced the seal and had simply not-
ed that fact on the work order form. In such circum-
stances, there is no basis for the Administrative Law
Judge's inferring that Van Sickle was dissembling in
a manner which would seem to warrant his discharge.
In view of the above, we conclude that these items
offered by the Administrative Law Judge as justifica-
tion for Respondent's terminating the employment of
Van Sickle do not on their merits give support to his
conclusion that Van Sickle was discharged for cause.
Thus, we are left with the Respondent's contention
that he was dismissed for doing unauthorized work.
We find this reason also unconvincing.
Van Sickle's work order called for replacing a freeze
plug and inspecting the pump seal. To replace the
plug he had to remove the transmission. When about
to reinstall it, he was asked by Gilmore, the dispatch-
er,' if he had checked the seal. Van Sickle replied that
he had and saw no leak. Gilmore then had Dowell, the
transmission expert, check, and he, too, stated he saw
no leak. Dowell explained that any further check
would require removing the seal, a process that would
necessarily damage it and thus require its being re-
placed. Gilmore stated to Dowell and Van Sickle that
he would not like to see it-presumably the transmis-
sion-"pulled out again the next day or next week for
free." As a result of this conversation, Van Sickle took
s Service Adviser Brunk wrote up work orders, Gilmore, the dispatcher,
assigned the work orders to the various mechanics Brunk , Gilmore, and
Pitarro, the shop foreman , could authorize an employee to do additional
work on a car However , under California law it is unlawful to perform work
on a car unless authorized by the customer and Respondent has a rule that
mechanics are not to perform such work unless authorized by proper man-
agement personnel
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the transmission to Dowell's workbench. There he
disassembled it and replaced the old seal, as it had
become damaged in the act of removing it for further
inspection.
According to English's testimony, on learning the
next day of the replacement of the seal, he asked
Brunk, Gilmore, and Pitarro if they had authorized it
and they all denied having done so. He then asked
Van Sickle about the matter. Van Sickle claimed Gil-
more had told him to replace the seal as Dowell and
Jastrzembski would verify. English inquired of Do-
well about the matter and, according to English's tes-
timony, Dowell stated that Van Sickle had been
authorized to replace the seal. English's reaction was
to state he had to back up his management personnel
"irregardless of what the mechanics say" and dis-
charged Van Sickle for making an unauthorized re-
pair.
Whether or not Gilmore told Van Sickle in so many
words to replace the seal-a statement he denied
making-seems relatively unimportant to us.' As the
above shows, it was Gilmore's actions which stopped
Van Sickle's reinstalling the transmission before re-
placing the seal, and Gilmore's conceded statement
about avoiding taking the transmission out again
without charge which resulted-and quite reasonably
we believe-in Van Sickle's taking those further steps
in checking the seal. Those steps necessarily resulted,
as Dowell explained to Gilmore at the time, in dam-
age to the seal. Thus it had to be replaced.
Furthermore, Dowell testified without contradic-
tion that at least once or twice a week he replaced
pump seals when his work order instructions were
simply to "inspect" the seal and that he had not been
criticized for doing so. He added that in his opinion-
and Dowell was Respondent's transmission expert-it
would be negligent not to replace the seal where, as
in Van Sickle's situation, the transmission had been
taken from the vehicle for other reasons because at
such time and otherwise fairly expensive repair in-
volves but minimal costs to the customer.7
The foregoing recitation shows, in our opinion, that
the Respondent in accusing Van Sickle of an unau-
thorized replacement was making him a victim of ob-
viously confusing, if not actually misleading,
instructions; that English's position that he had to
6 The Administrative Law Judge seems to have found that Gilmore said,
when talking to Van Sickle and Dowell about the seal, "Well, replace it then "
That conclusion would be directly contrary to his finding that Van Sickle was
not authonzed to replace the seal Moreover, the quoted words are words
Dowell testified he had said, not what Gilmore had said Van Sickle testified
that Gilmore, in a more lengthy statement, told him to replace the seal. But,
at best, precisely what was said is ambiguous as far as the record is con-
cerned, however, as explained above, the confusion is, in our view, of little
consequence
7 Once the transmission is removed it takes about 15 minutes to replace the
seal, with a total cost to the customer, including labor, of only a few dollars
back up his management irrespective of the merits of
Van Sickle's case shows he was more interested in
maintaining the appearance of a breach of a company
rule by Van Sickle than in determining the actual
merits of the situation;' and, finally, that in assertedly
discharging Van Sickle for unauthorized seal replace-
ment it was discharging him for conduct that had not
evoked criticism, much less a discharge, in the case of
Dowell.
In these circumstances, we find the asserted reason
for Van Sickle's discharge to be a pretext. Conse-
quently, in view of Respondent's hostility towards
union activity in its shop, as shown in part by its
conduct found above to have violated the Act,' we
find that Van Sickle was discharged because of his
activities as the Union's committeeman in
Respondent's shop and, thus, that his discharge vio-
lated Section 8(a)(3) and (1) of the Act.
In view of the foregoing, we make the following:
Conclusions of Law
1. Padre Dodge , Inc., doing business as Padre
Dodge , is an employer within the meaning of Section
2(2) of the National Labor Relations Act and is en-
gaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening an employee representative that
his union activities were inconsistent with continued
employment with Respondent , by creating the im-
pression of surveillance of employee union activities,
by harassing employees concerning their alleged
union activities through confrontations with its presi-
dent, by threatening that it would prevent any addi-
tional union activity in its shop , and by threatening an
employee to stop engaging in union activities and
increase his productivity , the Respondent has inter-
fered with , restrained, and coerced its employees in
violation of Section 8(a)(1) of the Act.
4. By discharging employee Richard K. Van Sickle
because of his engaging in union and other protected
activities , Respondent has violated Section 8(a)(3)
and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
Owens-Corning Fiberglass Corporation, 185 NLRB 75 at 76-77
9 See, also, Padre Dodge, 189 NLRB 378, enfd. 471 F 2d 416 (C A 9, 1973),
in which the Board found, inter ada,-and the court agreed-that Respon-
dent had discharged four employees in order to discourage union member-
ship
PADRE DODGE
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Having found that the Respondent unlawfully dis-
charged Richard K. Van Sickle on June 29, 1972, we
shall order it to offer him immediate and full rein-
statement to his former fob or, if that fob no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges
and make him whole for any loss of earnings he may
have suffered by reason of the discrimination against
him by payment to him of a sum of money equal to
that he normally would have earned from the date of
discharge to the date of Respondent's offer of rein-
statement, less his net earnings during such period.
The backpay shall be computed in accordance with
the remedial relief policies set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing and
Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices
committed, and the recent violations found to have
been committed by Respondent in 189 NLRB 378, we
shall order the Respondent to cease and desist from
in any other manner infringing upon the rights guar-
anteed employees in Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Padre
Dodge, San Diego, California, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of their rights protected by
Section 7 of the Act by threatening employees that
participation in union activities is inconsistent with
continued employment, by harassing employees con-
cerning their alleged union activities through confron-
tation with its president, by threatening employees
that it will prevent any additional union activity in its
shop and that they should stop engaging in union
activities and increase their productivity.
(b) Creating the impression of surveillance of
union activities of its employees.
(c) Discharging or otherwise discriminating
against employees because they engage in union or
other protected concerted activities.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
255
(a) Offer to Richard K. Van Sickle immediate and
full reinstatement to his former job or, if his job no
longer exists, to a substantially equivalent job, with-
out prejudice to his seniority or other rights and privi-
leges, and make him whole for his lost earnings in the
manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its San Diego, California, location co-
pies of the attached notice marked "Appendix." 10 Co-
pies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by an
authorized representative of the Respondent, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
10 In the event that 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
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
WE WILL NOT threaten our employees by telling
them that participation in union activities is in-
consistent with continued employment.
WE WILL NOT engage in conduct intended to
make our employees believe we are maintaining
surveillance of their union activities.
WE WILL NOT interfere with our employees'
union and other protected activities by threaten-
ing employees that we will prevent any additional
union activity in our shop and that they should
stop engaging in union activities.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge any employee for serv-
ing as a union committeeman or for otherwise
engaging in protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL offer Richard K. Van Sickle immedi-
ate and full reinstatement to his formerjob or, if
that job no longer exists, to a substantially equiv-
alent position, without prejudice to any seniority
or other rights and privileges previously enjoyed
by him, and make him whole for any loss of pay
he may have suffered as a result of his unlawful
discharge on June 29, 1972.
PADRE DODGE
(Employer)
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN , Administrative Law Judge: On No-
vember 8 and 9 , 1972, in San Diego, California , a hearing
was held in the above -entitled matter . The complaint, issued
August 29, 1972, is based on a charge filed July 11, 1972, by
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, and alleges
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act by Padre Dodge , herein called Respondent.
Upon the entire record I in this proceeding , including my
observation of the witnesses and after due consideration of
the posthearing briefs, I make the following:
1 The General Counsel 's posthearing motion to correct the stenographic
transcript is granted
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation engaged in the
retail sale of automobiles and of related parts and services
in San Diego , California. Respondent' s sales annually ex-
ceed $500,000 in value, and it annually receives automobiles
and parts valued in excess of $50,000 which are shipped
from points outside the State of California directly to its San
Diego store . Respondent is an employer within the meaning
of Section 2(2) of the Act engaged in commerce and in a
business affecting commerce within the meaning of Sections
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2 (5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint , as amended at the opening of the hearing,
alleges, in material substance , that Respondent , through its
president , Joseph Calabrese , its service manager , John R.
English , and its shop foreman, Frank W . Pitarro, violated
Section 8(a)(1) of the Act by (a) promise of and installation
of a profit sharing plan, (b) threats of discharge and other
reprisals, (c) coercive interrogation, (d) creating the impres-
sion that union activities were kept under surveillance, and
(e) prohibition of union activities on company premises,
and violated Sections 8(a)(1) and (3) of the Act by discharg-
ing Richard Van Sickle on June 29, 1972.
Respondent 's answer is a general denial.
B The Setting
Respondent is a typical new car dealership franchised by
Chrysler Motors Corporation. Its president, Joseph Cala-
brese , is also president of the San Diego Dodge Dealers'
Association and a member of the Dealers' Council for the
Western Region of the United States. He has delegated to
his service manager complete control of the repair shop, and
enters the area not more than one or two times per month.
The service manager in 1971, and through early August
1972, was John English. At the time of the hearing he had
been replaced by Frank Pitarro.
From some date in April 1972 through August 4, 1972,
and for some time thereafter, Frank Pitarro was shop fore-
man. His primary duties were those of quality control in-
spector and public relations . He spot checked mechanics to
see if they were doing their jobs on time. He talked to
customers about discrepancies . His duties included locking
up the shop at night , and policing the area to see that it was
cleaned up . He had no power to assign work or to discipline
or discharge employees. If he had any problems, he was
required to advise the service manager , whose office win-
dow commanded the entire service area . The complaint
alleges and the answer admits that Pitarro, as foreman, was
PADRE DODGE
a supervisor within the meaning of the Act.
The California legislature enacted in 1971, a comprehen-
sive customer protection bill entitled "Automotive Repair
Act." Although it was signed by the Governor and enrolled
by the Secretary of State on November 22, 1971, its provi-
sions did not go into full effect until June 30, 1972. This
statute, Business and Professions Code of the State of Cali-
fornia, Sections 9880 et seq. contains the following provi-
sions,
Sec. 9884.8 All work done shall be recorded on an
invoice . . . one copy shall be given to the customer
Sec. 9884.9 The . . . dealer shall give to the customer
a written estimated price . . . and shall not charge for
work done in excess of the estimated price without the
oral or written consent of the customer.. . .
Violation of either of these provisons, inter alia, is made a
misdemeanor punishable by a fine of $1,000 or imprison-
ment for 6 months.
Respondent, in the spring of 1972, attempted to bring his
operation into full compliance with all the provisions of the
Automotive Repair Act.
When a customer enters the shop he is greeted by a ser-
vice advisor who diagnoses the problem and fills out a re-
pair order, specifying the work to be done and the estimated
cost 2 He obtains the customer's signature and gives one
copy of the repair order to the customer. The order then
goes to the dispatcher, who, using independent judgment,
assigns the work to one of 11 line mechanics. It is the duty
of the mechanic to perform the work described on the "hard
copy" of the repair order and nothing else. If he believes
additional work to be necessary, he must advise the service
manager, the foreman, the dispatcher or the service advisor.
They in turn must communicate with the customer and
secure his permission. Only then may one of these four write
the additional work on the service order.
C. Richard K. Van Sickle
In November 1971, Van Sickle completed 20 years of
service in the United States Marine Corps. In August 1971,
pursuant to an understanding between Respondent and a
Marine major, as part of "Project Transition," Van Sickle
was permitted to work full time in Respondent's shop to
learn the trade of automotive mechanic. For 2-1/2 months
he worked under the direct tutelage of a journeyman me-
chanic James Laws. He received his regular Marine Corps
pay. When he returned to Camp Pendleton for "processing
out," English told him that he could have a regular job as
a line mechanic after his discharge. Van Sickle told English
2 Though called an "estimate," this cost is, in the absence of additional
authorization from the customer, the final price The service advisor is re-
quired to follow the "Glen Mitchell Manual" which lists the price of every
replacement part, and prescribes the number of hours or tenths of hours to
be charged to the customer for labor on every possible operation
257
in December that he accepted the offer, and he started to
work for Respondent on January 3, 1972. His base pay was
$3.00 per hour. Respondent paid semimonthly, and on ev-
ery paycheck to and through, April 30, 1972, Van Sickle
earned a bonus over and above his hourly rate.
Respondent's mechanics are paid by a complicated for-
mula based on varying individual hourly rates and on a
progressive bonus when "productivity" reaches or exceeds
75 percent. "Productivity" is computed as 74% of the quo-
tient obtained by dividing the total hours billed to custom-
ers during a payroll period by the total hours actually
worked by the mechanic during the same period. The fol-
lowing chart 3 shows the "productivity" of each mechanic
during the period from January 2, 1972 through April 15,
1972, inclusive:
Name of Hrs. Hrs. Billed Produc.
Mechanic Wkd. Cust. Percent
Cartwright 575 1117.3 143.6
Dowell 595 1132.0 140.6
Gilmour 564 902.5 118.4
Laws 598 916.0 113.2
Van Sickle 577 677.2 86.6
Edwards
(hired 3-6) 243 281.5 85.8
Buchard
(hired 2-29) 288 321.0 82.1
West 628 770.5 81.0
Zeller 628 686.1 80.4
Becker 638 658.5 79.2
Jastrzembski
(hired 4-10) 44 24.7 41.4
Prior to the appointment of Pitarro in April 1972, there
was no shop foreman, and Van Sickle took all of his instruc-
tions from the dispatcher, James Gilmore.
Pitarro testified, without contradiction, that in May and
June 1972, he had many arguments with Van Sickle about
3 Computations in this chart are based on worksheets of W R Davidson,
Dealer Service and Operations Specialist, U S Automotive Sales & Service,
Chrysler Motors Corporation, Detroit, Michigan, received in evidence as
Resp Exh 7 Calabrese, after identifying Resp Exh. 7 testified, with com-
plete disregard for truth, that this exhibit showed that Van Sickle's productiv-
ity for the period January 2 through April 15 was the lowest of all mechanics
The figure he read for Van Sickle's productivity, "76" was the number of
hours which Van Sickle worked between January 3 and January 15, 1972.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing jobs, and several times recommended to English that
Van Sickle be discharged. On one occasion a car on which
Van Sickle had been working was projecting into the alley
at closing time , making it impossible for Pitarro to close the
gate . When Pitarro asked Van Sickle's help in moving that
car, Van Sickle answered that he would not unless he re-
ceived overtime pay. Several times he refused to recheck
brakes for the asserted reason that Pitarro was incompetent
to tell him what was wrong with them. When assigned by
the dispatcher to a valve job he told Pitarro that he was not
going to do it because he was not qualified. When Pitarro
insisted , Van Sickle got "hostile" but did the job. Thereafter
Pitarro received repeated "gripes" from the customer. When
a customer called for a car while the lotboy was out to
lunch, Pitarro could not find the keys. Being informed that
Van Sickle had parked the car, he asked Van Sickle to find
the keys, and Van Sickle refused. When Pitarro patted Van
Sickle's Jacket, which was lying on a bench, to see if he could
feel the keys, he was upbraided by Van Sickle for "going
through his personal stuff." One day he told Van Sickle to
go and see John English because he was tired of arguing,
because he could not have a man in front of him who was
refusing to work and as far as Pitarro was concerned, Van
Sickle was finished. This order was also ignored.
During the first pay period in May Van Sickle's produc-
tivity fell, for the first time , below 74 percent. He was called
to Calabrese's office on May 12, 1972, and they had a long
conversation 4 Van Sickle told Calabrese that he thought his
low productivity was due to his lack of knowledge com-
pared with the other mechanics. Calabrese told Van Sickle
about his war record during the second world war, remind-
ed him of the profit sharing plan which Dodge Dealers were
considering, and which had been described earlier at a
meeting of service department employees, and told him that
if any employee was unhappy, he was free to leave.
That night Van Sickle signed an authorization card for
the Union and volunteered to be the Union's shop commit-
teeman for Padre Dodge.
Van Sickle openly and vigorously promoted the Union.
He distributed authorization cards to all of the mechanics,
to the lotboys, to the parts men, and to some of the bodysh-
op men. He also distributed union literature in the shop.
One morning, before work, as he was placing a copy of the
Union's contract with Long Beach, California, automobile
agencies on the tool boxes of mechanics, he noted that
Pitarro was following him and picking up the contracts. He
saw Pitarro place them on English's desk. Van Sickle sus-
pended his distribution until the noon hour, at which time
he handed out the remainder of his contracts to the mechan-
ics in person. On one occasion, when Pitarro approached a
group of mechanics, one of them handed him a union au-
thorization card and said, "Here Frank, sign it . Van Sickle
is in the Union and wants you to join it."
On June 22, 1972 (one or two days after Van Sickle's
distribution of Long Beach contracts), English filled out a
Although Van Sickle testified at one point that this conversation was the
day after he signed a union card, he had previously testified that he signed
the card and volunteered to be shop committeeman on May 12 A contempo-
rary memborandum of Calabrese fixes the date of the conversation as May
12
"Personnel Interview Form ," stating under "Purpose of In-
terview" the words , "Hourly Productivity is Low ," and un-
der "General Comments". "Hourly Productivity Output
For Period 6/ 1 /72 to 6/15/72: 77.1% productive , 2.1% bo-
nus; For Period 5/ 1 /72 to 5/15/72: 73.8% productive, 0.%
bonus." English then called Van Sickle to his office , showed
him the form , and asked Van Sickle why his productivity
had dropped so low. Van Sickle answered indignantly that
it was the fault of the parts department , that he had to waste
too much time at the counter waiting for parts . English then
wrote on the "Personnel Interview form," the words:
Complains of too much time lost on parts procurement.
Wants overtime for Saturday work.
Van Sickle signed the form and left the office. A few min-
utes later, while English was talking to Calabrese on the
telephone, Van Sickle stuck his head back in the door and
yelled:
Let me tell you something. You are full of- and your
dispatch board is full of-
Calabrese heard the remark clearly and asked who it was.
English replied that it was Van Sickle and that he should be
fired. Calabrese asked that Van Sickle be sent to his office.
Calabrese told Van Sickle that he had received com-
plaints from the service manager, service advisors, dispatch-
er, and parts department, and that Van Sickle would have
to change his attitude if he wanted to get ahead. Calabrese
told Van Sickle that he had been in the Navy, and had been
attached to the Marine Corps and the Australian Army.
Calabrese had only gone to 10 grade, had not inherited any
money, and had worked his way up from the bottom. The
conversation ended with Van Sickle's promise to change his
ways and to try to get along.
During the lunch period on June 27, English told Van
Sickle that he knew Van Sickle was a union organizer and
asked, "why, if he wasn't happy where he was working, why
did he continue employment?"
At 8:00 a.m. June 28, Van Sickle received from the dis-
patcher, James Gilmore, a work order reciting:
Replace fuze plugs
Check Front pump seal.
Van Sickle pressurized the cooling system and verified the
fact that coolant was leaking around the fuse plugs in the
rear of the engine. It was necessary to remove the transmis-
sion to effect a replacement. Gilmore came up and asked if
he had checked for a leak of transmission fluid. Van Sickle
answered that he saw no sign of leak. Gilmore said, "Get
Jerry over here." Gerald Dowell, who did all the automatic
transmission work for Respondent, looked at the transmis-
sion and told Gilmore, "It's not leaking." Gilmore said,
"Well, I would hate to see you pull it out again next week
or the next day for free." Gilmore answered, "Well, replace
it then" and went back to his stall.
Van Sickle then took the transmission to Dowell's stall,
and using Dowell's tools, removed the front pump seal and
replaced it with a new part. Before turning in the "hard
PADRE DODGE
copy" of the repair order with the finished job he wrote in
ink the word "Replace" after the words "Check front pump
seal." 5
On the afternoon of June 28, Harold Brunk, the service
advisor who had written the order on June 27, showed the
hard copy to English and told him that he (Brunk) had not
authorized replacement of the seal. English then inquired of
Gilmore and Pitarro, and both denied authorizing replace-
ment . English then prepared a "Personnel Interview Form"
stating the "Purpose of Interview" to be "Termination," and
under "General Comments" the words:
Ref. R .O. #21183, Unauthorized Repair of Trans.
Front pump seal.
Ref W.R.O. #F-10024 Repair and insp . oil leak at
Trans & Engine . Oil leak at Trans. still exists at Ext.
seal. Trans. mounting Bolt striped and no supervisor
informed Insp. By Shop Foreman & Serv. Mgr.
The form was signed by English and by Pitarro.
On this morning of June 29, English asked Van Sickle
who had written the word "Replace" on the repair order.
Van Sickle answered that he did. English asked who had
authorized replacement of the seal. Van Sickle answered
that the dispatcher had told him to replace the seal and that
Dowell, Jastrzembski, and Buchard had heard the order.
English asked Pitarro to get Dowell. Dowell told English
that Van Sickle was authorized to replace the seal. After
Dowell left the office, English said, "I have to back my
management personnel up, irregardless of what the me-
chanics say" and discharged van Sickle "for making an
unauthorized repair on a vehicle," In response to Van
Sickle's request that he put it in writing, English prepared
and delivered to Van Sickle the following:
TERMINATION NOTICE
Date 6-29-72
Name: R. Van Sickle
Position: Mechanic
Term Effective Date: 7:30 A.M. 6-29-72
Reason for Termination: Unauthorized Repair' on
R.O. #21183 to Replace Trans Front Pump Seal.
The "Personnel Interview Form" which English had pre-
pared the previous night was not shown to Van Sickle, nor
was there any mention of the W.R.O. #F-10024 described
therein. There was no mention of productivity, of attitude,
or of the Union.
After discharging Van Sickle, English wrote on the back
of the "Personnel Interview Form":
Repair on 21183 .10 Replace Front Pump Seal was not
5 On April I, 1972, Van Sickle had signed a statement required of all
mechanics by Respondent reciting
There is to be no additional work added to any repair order unless
written on by a service writer, dispatcher , shop foreman or service man-
ager
259
authorized by Serv. Writer, Mr. Brunk, by Dispatcher
Mr. Gilmore or by Foreman Mr. Pittaro
English then obtained the signatures of Harold Brunk,
F. W. Pitarro, and Jim Gilmore. On the same morning
English prepared a memorandum for Dowell's signature
reciting that he had heard Gilmore authorize Van Sickle to
replace the seal. Dowell refused to sign and told English, "I
didn't hear it. I wasn't in the area when it was ordered to
do so." English also asked Jastrzembski whether he had
heard the order. Jastrzembski told English that he had heard
an order to "check" the seal but had not heard any order
to replace it.6
On the afternoon of June 29, Van Sickle asked Calabrese
if he had been informed of the discharge. Upon receiving
an affirmative answer he asked that Dowell and Jastrzemb-
ski be questioned by Calabrese. Instead of complying with
this request, Calabrese called in turn, English, Pitarro and
Gilmore and each denied in Van Sickle's presence that he
had authorized replacement of the seal. Calabrese then said:
Van, there are just too many complaints against you.
I can't do anything for you this time.
Calabrese told Van Sickle that in looking for other em-
ployment, he could use Calabrese's name directly, that no
one would blackball him or run down his reputation, that
when he went to another shop he could get a better start and
have a different attitude than he had at Padre Dodge.
D. Interference, Restraint, Coercion
At a service department meeting held the last week in
April or the first week in May 1972 Calabrese announced
that all Dodge dealers in the San Diego area were proposing
to put into effect a profit-sharing retirement plan. He re-
minded his auditors that the profit-sharing plan which Re-
spondent had in effect in 1967 had been terminated
pursuant to a court order obtained by a minority stockhold-
er and expressed the hope that "with the other five dealers
putting it in, that it could not be opposed." Respondent's
participation in the plan was approved at a special meeting
of its Board of Directors on May 19, 1972.
On June 10, 1972, Respondent received the following
letter:
6 Only English, Van Sickle, and Dowell were present when Dowell was
questioned Van Sickle testified, "Jerry basically substantiated what I had
already told [English] " English testified, "Dowell stated that he had heard
the order to replace " There is no testimony by Dowell describing his state-
ment to English in the presence of Van Sickle Dowell, describing his prac-
tice, when the work order states "check front pump seal" testified that if the
transmission is in the car, and fluid is not escaping, he goes no farther If the
transmission is out of the car, and no fluid is escaping , he replaces the seal,
without any authorization other than the word "check " It takes about 5
minutes to replace the seal after the transmission is removed The cost of the
seal to the dealer is 60 cents and to the customer is $1 60
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 8, 1972
TO ALL SAN DIEGO NEW CAR DEALERS
Greetings:
This letter will officially notify you that the Machinists
and Teamsters Unions are engaged in organizing activ-
ities of all service department employees except the
supervisors, who are excluded by law:
"Section 7 of the Labor-Management Relations Act,
which is a Federal law of the United States, guaran-
tees employees the right to organize and bargain col-
lectively with their employer. Here are the actual
words from this law:
SECTION 7 EMPLOYEES SHALL HAVE THE RIGHT TO SELF-ORGA-
NIZATION, TO FORM, JOIN OR ASSIST LABOR ORGANIZATIONS,
TO BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES OF
THEIR OWN CHOOSING, AND TO ENGAGE IN OTHER CONCERTED
ACTIVITIES FOR THE PURPOSE OF COLLECTIVE BARGAINING OR
OTHER MUTUAL AID OR PROTECTION
Please notify all your supervisory personnel so that
they will be aware of the employee's rights to organize.
Sincerely,
T.R. ROBERTS ( signed)
T R. Roberts
Business Representative
District Lodge 50, IAM &
AW
Calabrese, on advice of his counsel, Mr. Brown, had Eng-
lish post the Union's letter on the bulletin board in
Respondent's shop.?
On July 3, 1972, Mr. Brown met with Respondent's super-
visors and advised them that management must remain neu-
tral "in regards to any [union] organizational drive "
Calabrese at the same meeting stated that there were prob-
lems with the "pension" plan which were currently being
ironed out.
On the same day, Calabrese called a meeting of nonsuper-
visory service department employees. After introducing Mr.
Brown, Calabrese said, "he was going to fight for his em-
ployees . . . he had fought these people before and he
would fight them all the way to the Supreme Court, if neces-
sary." a Calabrese also stated that the retirement profit shar-
ing plan was still in process and would come into effect
shortly. After Calabrese left the meeting, Mr Brown read
a letter from the Union, and stated, inter alia
that a person's activities on his own time were his own
business and could be carried on any way he saw fit
... that management had no control whatsoever, nor
There is no evidence that Van Sickle engaged in any union activity (other
than signing a card and agreeing to be committeeman) prior to June 10, 1972,
nor is there any evidence that Respondent was aware of any campaign by
the Union to organize service employees prior to June 10, 1972
8 As of July 3, 1972, the Board's petition for enforcement of its order
handed down March 29, 1971, in the matter of Padre Dodge, 189 NLRB 378,
was pending in the United States Circuit Court of Appeals for the Ninth
Circuit
was to exercise any control whatsoever, over an
employee's personal action on his own time.
The lunch period for Respondent's shop employees was
12:00 noon to 1:00 p.m At 11:45 on August 2, 1972, Arthur
Jastrzembski, with the prior permission of English, punched
out for lunch. Shortly thereafter he was approached by
Gary Pittman, a mechanic employed in Respondent's truck
shop. Jastrzembski asked Pittman how he was doing with
the insurance which Pittman was selling in the evening.
Pittman described the benefits of his insurance, and Jas-
trzembski said,
If we ever organized and we got the Union in, we would
probably receive good retirement benefits in the Kaiser
plan from the Union, and that I wasn't really interested
in looking at any other insurance until then.
On the afternoon of August 2, Jastrzembski was called to
English 's office and shown an affidavit signed by the then
dispatcher , Bob Burrows , by Gary Pittman and John Eng-
lish, reciting that Jastrzembski had been discussing union
activities during working hours. Jastrzembski told English
that he was clocked out for lunch, that the discussion con-
cerned insurance , and that he had no intention of discussing
union activities during working hours. English told him to
get back to work and get his percentage up.
Next morning , August 3, in Calabrese 's office in the pres-
ence of English and Pittman , Jastrzembski testified , without
contradiction:
Mr. Calabrese had asked what we had been discussing
the day before, and Gary explained to him that we were
discussing the difference between the insurance that he
was selling, and that I had told him that I would wait
and see if we got the Kaiser plan or not when the Union
got us organized He then told Mr. Pittman he could
leave, and he asked me what the Kaiser plan was. I
explained to him that it was a medical and hospital
plan offered by the Union. He told me he didn't want
me conducting union activities during working hours.
He said there was already enough discord in the shop,
and that he didn't want any more, and he would see to
it that there wasn't any more. He explained to me that
my percentage output in the shop was the lowest at that
time, and he informed me that I should get back to
work and forget about all my other activities and get
my percentage up.
As above noted, the lunch hour in Respondent's shop is
noon to 1 o'clock On August 3, 1972, Jastrzembski punched
in from lunch at 12:45 and went to work. A few minutes
later, he was called to the edge of Respondent's property by
Van Sickle and the Union's Grand Lodge Representative,
H. B. Quick. Quick gave Jastrzembski some union litera-
ture to be distributed. As Jastrzembski was walking back
toward his stall, Pitarro walked up and told Van Sickle and
Quick "to get the hell off the property." Quick replied, "We
PADRE DODGE
are in an alley; we are not on the property . We can stay here
as long as we want ." Pitarro repeated his demand with
vulgar emphasis . Quick repeated his refusal with highly pro-
vocative obscene epithets directed at Pitarro . Pitarro shook
his finger at Quick saying, "You have had it ," and turning
to Jastrzembski and again shaking his finger , said "You
have had it too." At this moment the dispatcher , Burrows,
walked up . Jastrzembski handed his time card to the dis-
patcher saying, "I quit," and started to pack his tools.
Shortly thereafter Jastrzembski was called to English's
office and in the presence of a police officer questioned by
English about what Van Sickle and the union man were
doing there. Jastrzembski answered that they were there to
give him some union literature. English asked for and re-
ceived a copy. English asked for the name of the man with
Van Sickle, and Jastrzembski refused to tell him.
When Calabrese returned from lunch at about 1 : 30 p.m.
it was reported to him that Van Sickle and a union man had
come on the premises and tried to start a fight and that
Jastrzembski had quit . Calabrese gave instructions to make
a written report , get the name of the union man , and swear
out a warrant . He also asked to see Jastrzembski.
In Calabrese 's office , in the presence of English and Pitar-
ro, Jastrzembski refused to divulge Quick 's name, or his
office in the Union . He told Calabrese that he had quit
"because I couldn 't take the pressure between Padre Dodge
and the Union any more." Calabrese told Jastrzembski
what his rights were under the N.L.R.A . and asked him to
stay on as an employee, stating that the only thing Calabrese
was interested in was the type of workmanship turned out.
In response to Calabrese 's invitation to stay, Jastrzembski
replied that he already had another job, having made a
telephone call between the time he quit and the time he was
called to the office.
In the period from April 1972 through October 1972,
Respondent reported , at a number of service department
meetings , on the details and prospective implementation of
the profit sharing retirement plan. By November 10, 1972,
the plan was to "all intents and purposes" in effect.
E. Concluding Findings
1. There is no evidence that Respondent's profit-sharing
retirement plan was announced or implemented to induce
employees to withdraw their support from the Union. Re-
spondent was committed to the plan , and its intention to put
the plan into effect was announced to employees before it
had any knowledge of any union activity affecting its shop
employees.
2. There is no evidence that any employee was threat-
261
ened with discharge or other reprisal for engaging in union
activity.
3. Respondent's interrogation of Jastrzembski had the
legitimate purposes of (a) ascertaining whether he was con-
ducting union activities on company time, and (b) ascertain-
ing the identity of a stranger who had called Jastrzembski
from his work and created a disturbance. There is no other
evidence of interrogation related to union activities.
4. Van Sickle's union activities were conducted openly
on company property in full view of supervision. English's
acknowledgment that he was aware of this fact does not
create the impression that union activities were the subject
of unlawful surveillance. The statement by English that Jas-
trzembski had been discussing the Union with an employee
on company time could not create the impression that union
activities were the subject of unlawful surveillance. Working
time is for work. Pittman was on the clock. The conversa-
tion was on company property in full view of supervision.
5. There is no evidence of any prohibition of union activ-
ities on company property on nonwork time.
6. Van Sickle was discharged because his production had
fallen off, because of his insulting and contemptuous re-
mark to English, when questioned about drop in productiv-
ity, because he performed unauthorized work, and because
he attempted to cover this dereliction by writing the word
"replace" on a work order in clear violation of a rule of
Respondent implementing the state law. Van Sickle would
have been discharged on June 22, 1972, but for the timely
intervention of Calabrese. "Respondent may well have wel-
comed the opportunity of getting rid of him, but neither his
activities, nor the Respondent's attitude, gave him privileges
greater than those of other employees." Lloyd A. Fry Roof-
ing Company, 85 NLRB 1222, 1224. I conclude and find that
Van Sickle was discharged for reasons unrelated to his
union or protected concerted activities.
CONCLUSIONS OF LAW
1. Padre Dodge, Inc., doing business as Padre Dodge, is
an employer within the meaning of Section 2(2) of the Na-
tional Labor Relations Act and is engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. Padre Dodge has not, on this record, engaged in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) or (3) of the Act.
[Recommended Order omitted from publication.]