San Jose Bavarian Motors

National Labor Relations Board - Board Decisions

Apr 20, 1977

229 N.L.R.B. 127 (N.L.R.B. 1977)

SAN JOSE BAVARIAN MOTORS
Don Lucas International, Inc. d/b/a San Jose
Bavarian Motors and Michael Steven Fulton. Case
20-CA- 10986
April 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On October 12, 1976, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in answer to General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and finds merit in certain of the General
Counsel's exceptions. Accordingly, the Board has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge only to the
extent consistent herewith.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by
threatening employees with discharge if they sought
union representation, by interrogating employees
regarding union activities, and by attempting to
influence voting by promising to increase health
benefits.' We further find, contrary to the Adminis-
trative Law Judge, that Respondent violated Section
8(a)(1) and (3) of the Act by its discriminatory
discharge of Michael S. Fulton.
Michael S. Fulton was hired as an apprentice in
July or August 1975.2 Fulton testified that during his
hiring interview with Ed Bleyer, Respondent's service
manager, he was told that if he had anything to do
with the Union he would be fired "so fast his head
would swim."
After Fulton was hired, he and four other employ-
ees decided to seek union representation and Fulton
went to the union office to find out how to obtain
I The Board's usual practice, upon finding that an employer has violated
the Act by attempting to influence voting by promising to increase health
benefits, is to impose a cease-and-desist order. Therefore, contrary to the
Administrative Law Judge. in accordance with standard Board procedure,
we are imposing the appropriate remedial order with respect to that
violation.
2 Fulton testified that he was hired sometime in July. Ed Bleyer,
Respondent's service manager, testified that Fulton was hired on August 13,
1975. Respondent's documentary evidence, which includes Fulton's employ-
ment application. shows August 13, 1975., to be the hiring date. Thus, the
Administrative Law Judge s finding that Respondent's documentary
evidence established Fulton's hiring date as July 13, 1975, is erroneous. In
any event, whether he was hired on July or August 13 is of little or no
significance to the issue of his discharge.
229 NLRB No. 23
representation. 3 Authorization cards were signed and
the Union filed a petition for a representation
election. The election, which the Union won, was
held on October 27, 1975. 4
In September, during the organizing campaign,
Bleyer met informally with Fulton and four other
employees in the lunchroom. According to employee
Martin, Bleyer said that he did not want a union in
his shop. Employees Fulton, Whiteman, and Martin
testified Bleyer threatened that anyone initiating or
favoring a union would be fired. Bleyer did not deny
this version of his statements and admitted asking
the employees how they felt about the Union. Early
in October, in a private conversation on the shop
floor, Bleyer asked Fulton if he was a good union
man, if his father was a good union man, and if he
was in favor of the Union. Fulton replied that he was
for the Union. During the 2 weeks preceding the
election, Martin testified that Bleyer asked him
approximately five times how he was going to vote.
Each time Martin replied that he was uncertain as to
how he would vote. These conversations also were
not denied by Bleyer.
On September 17 and October 6 and 16, Bleyer
spoke with Fulton privately and following each
session made notes about the discussions. In the first
notation, Bleyer wrote that he had held numerous
conversations with Fulton about being a "wiseguy"
and about taking the advice given him. In the second
note, Bleyer wrote that he had warned Fulton about
radio playing and using a newly sold car at
lunchtime, and this was his last warning. In the
October 16 notation, Bleyer wrote that he told
Fulton he was being laid off because of his bad work
habits and complaints about his habits from other
employees, but that he would be permitted to work
until October 22, the end of the pay period.5 On
October 16, Fulton asked Bleyer whether he had
been laid off due to "my so-called attitude or because
of my union affiliation." Bleyer replied, "You might
say that. You could say that."
A week before the election, according to Martin's
testimony, Bleyer met with eight employees and
stated that he was authorized by Respondent to tell
them that Respondent would pay their Blue Cross
benefits in full if they did not vote for the Union.
3 Fulton testified that the organizing efforts commenced in late August
or early September. The Administrative Law Judge stated that the
employees decided to seek representation in early September 1975, but the
union letter requesting recognition is dated August 29, 1975.
4 There were challenges affecting the outcome of the election and
objections were filed. The Regional Director recommended that the Board
sustain the challenges, overrule the objections. and certify the Union. The
Board affirmed the Regional Director's report and certified the Union.
5 Fulton testified that he was told he was being laid off on October 20,
the day Bleyer promised health benefits to those employees not voting for
the Union, and not on October 16, as Bleyer had testified. The Administra-
tive Law Judge credited Bleyer's testimony.
127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin and Fulton both testified that Fulton's
response to Bleyer's statement was to proclaim
loudly: "Bullshit, you can't do that. That's illegal."
Bleyer did not deny their version of the incident.
In December, Bleyer asked employee Whiteman
whether it was Mike Fulton or Bud Littlejohn that
started the Union. When Whiteman replied it was
neither, Bleyer appeared surprised and asked, "Are
you sure about that?" Bleyer admitted that he asked
the mechanics if Fulton had instigated the drive to
get the Union in.
Respondent contends that it hired Michael Fulton
despite adverse reports concerning his attitude by
prior employers, in order to give him a chance.
However, during his short period of employment, he
proved to be a "troublemaker" and a "nuisance."
Respondent maintains that Fulton consistently
displayed poor work habits and failed to heed advice.
Respondent's witnesses had observed Fulton at work
and testified that from the beginning of his employ-
ment he displayed bad work habits. These included
loud radio playing, aimless wandering throughout
the shop and office area, excessive visits to the
washroom, and repeatedly ignoring Bleyer's advice
as to which mechanics to seek out for assistance.
Service Manager Bleyer's efforts to help Fulton, by
offering counsel and advice, were unsuccessful,
because Fulton chose not to listen, Respondent
contends, therefore, that ample evidence exists to
support the Administrative Law Judge's determina-
tion that the discharge was for a lawful, nondiscrimi-
natory reason.
The Administrative Law Judge states that the most
difficult question presented by this case is whether
Respondent discharged Fulton for unlawful reasons.
The crucial question, in his estimation, was whether
Bleyer's patience snapped because of Fulton's union
activities or because Bleyer concluded that Fulton
had been given a fair chance to prove himself and
had failed. The Administrative Law Judge examined
the General Counsel's primafacie case and found it
to be "extremely thin," consisting of some evidence
of animus and "knowledge only that Fulton like
others, favored the Union."
We disagree with the Administrative Law Judge's
characterization of the General Counsel's primafacie
case as "extremely thin" and, consequently, with his
conclusion that the General Counsel failed to prove
that the discharge was discriminatorily motivated.
The mere existence of a justifiable ground for
dismissal is no defense if it is a pretext and not the
moving cause.6 It is possible that Respondent had a
valid nondiscriminatory reason for the discharge of
6 N.L.R.B. v. Solo Cup Companv, 237 F.2d 521, 525 (C.A. 8, 1956).
7 Broq'hill Companh, 210 NLRB 288 (1974).
8 See fn. 2, supra.
Michael Fulton. It is well established, however, that
a discharge motivated in part by an employee's
exercise of Section 7 rights is a violation even though
another valid cause may also be present.7
While the Administrative Law Judge found that
Respondent violated Section 8(a)(1) by threatening
and interrogating employees regarding their union
views and activities, we find, that he failed to
consider the full significance of these threats and
interrogations in relation to the issue of Fulton's
discharge. Thus, the Administrative Law Judge
found the initial threat against Fulton to be "some-
what remote." However, there is conflicting evidence
as to when Fulton was hired, but since the Respon-
dent's records show the date as August 13,8 it is most
likely that the threat was made at that time, which
cannot accurately be characterized as remote. But
even if it were remote in time, this threat stands in
the record as the sole instance of a threat being made
to an individual employee. The second threat, made
in mid-September to a small group of employees,
clearly was not remote in time since it occurred
during the union campaign. 9
Similarly the interrogations signify more than
Respondent's animus. By means of unlawful interro-
gation, Respondent was able to ascertain that Fulton
was a union adherent. The Administrative Law
Judge, in summarizing the General Counsel's prima
facie case, found it to include: "Knowledge only that
Fulton, like others, favored the Union .... " This
finding is not supported by the record. There is no
indication that Respondent was aware of the
prounion sentiments or protected activities of any
employee other than Fulton. Rather, it is clear that
Fulton was the only employee to admit to being a
union adherent, and the only employee personally
threatened. Furthermore, when Fulton was being
terminated he asked Bleyer if it was because of his
"so-called attitude ... and/or ... [his] union
affiliation." Bleyer replied, "You might say that. You
could say that." The Administrative Law Judge
dismissed the significance of the response by suggest-
ing that Bleyer's voice inflection may have negated
the apparent meaning of the statement. Speculation
regarding possible voice inflection is not a sufficient
basis for rejecting an otherwise plain meaning of a
statement.
The timing of the discharge, 12 days before the
election, is yet another factor supporting our finding
that the discharge was discriminatorily motivated.
The Administrative Law Judge finds that the
October 16 discharge "does not seem calculated to
rid Respondent of a strong Union adherent," since
" The threat may have had particular significance for Fulton, who was
the only individual to have been personally threatened.
128
SAN JOSE BAVARIAN MOTORS
Bleyer permitted Fulton to continue working until
October 22. The Administrative Law Judge does not
point out, however, that knowledge of the discharge
might have had a substantial chilling effect on union
sympathizers.
The Administrative Law Judge's characterization
of the General Counsel's case as "extremely thin"
indicates that he did not distinguish between Re-
spondent's proffered and actual reasons for terminat-
ing Fulton. Fulton was hired despite the fact that
Bleyer had learned from references that his work
attitude was unsatisfactory. From the very beginning
of his employment, Respondent claimed that Ful-
ton's work habits were unsatisfactory.10 Neverthe-
less, no formal action was taken regarding the
problem until mid-September, after Respondent
knew about the union organizing efforts. Moreover,
Fulton was not discharged, in spite of alleged
numerous offenses and complaints from other
employees, until October 16, 12 days before the
election and shortly after Respondent learned of
Fulton's prounion sentiments.
In view of the above, we conclude that Fulton's
alleged deficiencies as an employee were used as an
excuse to mask Respondent's unlawful motive in
discharging him, and we find that Respondent
thereby violated Section 8(a)(3).
THE REMEDY
Having found that the Respondent, Don Lucas
International, Inc. d/b/a San Jose Bavarian Motors,
has engaged in violations of Section 8(a)(3) and (I) of
the Act, it is ordered to cease and desist from the
unfair labor practices found and from in any other
manner infringing upon the statutory rights of its
employees, offer Michael S. Fulton immediate, full,
and unconditional reinstatement to his former job or,
if that position is no longer available, to a substan-
tially equivalent position of employment, without
prejudice to his seniority or other rights and
privileges, and reimburse him for any loss of pay
suffered as a result of the discrimination against him
in the manner set forth in F. W. Woolworth Company,
90 NLRB 289, 291-293 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and post
appropriate notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
to We note that Fulton was not the only employee to display "poor work
habits." Bleyer named three other employees who played their radios too
loudly, and he testified that the radio problem existed before Fulton was
hired and still existed as of the date of the hearing.
" In the event that this Order is enforced by a Judgment of a United
Relations Board hereby orders that the Respondent,
Don Lucas International, Inc. d/b/a San Jose
Bavarian Motors, San Jose, California, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with discharge in the
event that they seek union representation.
(b) Interrogating employees regarding their union
activities, sympathies, and desires.
(c) Directly or indirectly promising employees
economic benefits to dissuade them from joining,
remaining members of, or supporting the Union, or
any other labor organization.
(d) Discharging, refusing to employ, or otherwise
discriminating against employees because of their
union membership, activities, or sympathies.
(e) In any other manner interfering with, restrain-
ing, or coercing any employee in the exercise of the
rights guaranteed them under Section 7 of the Act to
engage in or refrain from engaging in organizational
or other union activity.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to Michael S. Fulton immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make said employee whole for any
loss of pay suffered as a result of the unlawful
discharge in the manner set forth in the above section
entitled "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 Jose, California, place of
business copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by an authorized representa-
tive of Respondent, shall be posted 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
States Court of Appeals, the words in the notice reading "Posted b) 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."
129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what steps Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a represen-
tative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activity
except to the extent that the employees'
bargaining representative and employer
have a collective-bargaining agreement
which imposes a lawful requirement that
employees become union members.
WE WILL NOT in any other manner interfere
with any of your rights set forth above which are
guaranteed by the National Labor Relations Act.
WE WILL NOT interrogate employees about their
union activities or the union activities of other
employees.
WE WILL NOT threaten employees with dis-
charge because they choose to engage in union
activities.
WE WILL NOT directly or indirectly promise
employees economic benefits to dissuade them
from joining, remaining members of, or support-
ing the Union, or any other labor organization.
WE WILL NOT discharge, refuse to employ, or
otherwise discriminate against employees because
of their union membership, activities, or sympa-
thies.
WE WILL offer Michael S. Fulton immediate
and full reinstatement to his former job or, if that
job 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 suffered by reason of his
discharge.
DON LUCAS
INTERNATIONAL, INC.
D/B/A SAN JOSE
BAVARIAN MOTORS
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me on June 8, 1976, at San Jose,
California, pursuant to a complaint and notice of hearing
issued on March 31, 1976, by the Regional Director of the
National Labor Relations Board for Region 20. Said
complaint is based upon a charge filed on January 12,
1976, by Michael S. Fulton, an individual (herein called
Fulton). The complaint alleges that Don Lucas Interna-
tional, Inc. d/b/a San Jose Bavarian Motors (herein called
Respondent) has engaged and is engaging in certain
violations of Section 8(a)(I) and (3) of the National Labor
Relations Act, as amended.
ISSUES
The principal issues are whether or not: (1) Respondent
unlawfully threatened to discharge employees in mid-July
1975,1 September, and early October because of their
involvement with the International Association of Machin-
ists and Aerospace Workers, AFL-CIO, District Lodge
No. 93 (herein called the Union); (2) Respondent unlawful-
ly interrogated employees regarding their union activities,
sympathies, and desires in October; (3) Respondent
promised to pay an additional portion of the health
insurance premium to obtain coverage for dependents in
order to induce employees to vote against union represen-
tation; and (4) Respondent discharged employee Fulton
because of his union or other protected concerted activi-
ties.
All parties were given full opportunity to participate, to
introduce relevent evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
both the General Counsel and Respondent.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent admits that it is a California corporation
operating an automobile dealership in San Jose, California,
which is engaged in both retail and wholesale sales and
service of new and used automobiles. During the past
calendar year its gross volume of business exceeded
$500,000 and during the same period it received goods,
materials, and supplies valued in excess of $50,000 directly
from suppliers located outside the State of California.
Consequently, it admits and I find, that it is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
I Hereinafter all dates are 1975 unless noted otherwise.
130
SAN JOSE BAVARIAN MOTORS
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all times material,
the Union is, and has been, a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
As noted, Respondent is an automobile dealership
located in San Jose, California. At this location Respon-
dent sells BMW automobiles. In addition Don Lucas, the
corporate president, owns and operates two other auto
dealerships in the San Francisco Bay area. These are a
Honda dealership, also in San Jose, and a Cadillac
dealership in South San Francisco. The record is unclear
regarding whether or not the Honda and Cadillac dealer-
ships are separately incorporated or are separate divisions
of Respondent. For the purposes of this case, it is clear that
the only facility involved is the San Jose BMW dealership.
The record establishes that Lucas acquired the San Jose
BMW dealership in October 1974, and that the dealership
had been in existence for several years, although owned by
others. Edgar Bleyer has been the dealership's service
manager for approximately 6 years and held that position
during the events cited below. Respondent concedes that at
all times Bleyer was a supervisor and agent of Respondent
within the meaning of Section 2(13) and (11) of the Act.
A. Interference, Restraint, and Coercion
According to employee Fulton, an "apprentice" mechan-
ic, he and several other service department employees,
including Chuck Cox, Jim Martin, Bruce Whiteman, and
Bud Littlejohn, decided to seek union representation in
early September. Fulton said that on one occasion he went
to the Union's offices to find out how to obtain representa-
tion. As a result of his inquiry, the Union mailed
authorization cards to Cox who distributed them to the
other employees. These were signed and mailed back to the
Union. The Union thereafter filed a petition for an NLRB
representation election. The parties stipulated that such an
election was held on October 27, 1975; that the Union won
the election, that there were one or more challenged ballots
affecting the outcome of the election, and that objections
were filed. The Regional Director then issued a report in
which he sustained the challenges, overruled the objections,
and recommended that the Board certify the Union as the
representative. Thereafter the Board affirmed the Regional
Director's report and did certify the Union as the exclusive
collective-bargaining representative of Respondent in an
appropriate unit covering the service department employ-
ees.
All of the conduct alleged to be violative of Section
8(a)(l) of the Act occurred prior to the October 27 election.
One incident, an allegation that Respondent unlawfully
threatened to discharge an employee, is alleged to have
occurred on July 20,2 well before the commencement of the
organizing campaign.
2 The record evidence shows that the incident actually occurred on July
13. As the charge was served upon Respondent on January 14, 1976, it
I. The threats to discharge
According to Respondent's documentary evidence,
Fulton was hired on July 13. On that date Fulton filled out
an application form and Bleyer interviewed him. Fulton
testified that Bleyer informed him of his job duties and
what would be expected of him. Then they started
discussing Fulton's pay rate. According to Fulton, Bleyer
said that Respondent paid the same wage rate as a union
shop, but was not a union shop nor had any desire to
become one. Moreover, according to Fulton, Bleyer said
that if Fulton had anything to do with the Union he would
fire him so fast his head would swim. Bleyer did not
specifically deny the conversation and admitted that he
had discussed the Union with Fulton at the time he was
hired.
Sometimes in September, after the organizing campaign
was underway, there was an informal meeting in the
company lunchroom. Although none of the witnesses could
testify specifically with regard to either the date or the time,
it is apparent that it occurred during a break and had not
been specifically called by management. Martin, Fulton,
Littlejohn, Cox, Whiteman, and Bleyer were all present.
Martin testified that Bleyer said that he knew there were a
few mechanics in favor of the Union and that he himself
did not want the Union coming into his shop and that he
didn't want any talk for the Union or anyone in favor of
the Union. According to Martin, Bleyer said that if anyone
was in favor of the Union, Bleyer would fire him. Fulton
testified that after Bleyer made a little small talk, he
proceeded to tell those present that if any of them were
known to have union affiliations, they would be fired.
Whiteman testified that Bleyer said that there was some
talk going around the shop about trying to start a union,
that the Company did not approve of that, and that anyone
found starting a union would be fired.
Bleyer admits attending this meeting and speaking to
those service department employees present. He did not
specifically deny their version of the conversation; instead,
he admitted asking the employees how they felt about the
Union and who contacted them about it.
2. Interrogation
According to Fulton, in early October he had a
conversation with Bleyer on the shop floor. At the time
Fulton was working on Bleyer's personal automobile. No
one else was present. According to Fulton, he was in the
process of reinstalling the auto's front suspension and had
gone to his toolbox to get some tools. Bleyer came up to
him and asked him if he was a "good union man." When
Fulton did not reply, Bleyer asked if Fulton's father was a
good union man. Fulton replied, "I don't see how that's
any of your business." Then Bleyer asked Fulton if he was
for the Union. Fulton replied that he was. Bleyer then
asked Fulton why he favored the Union and Fulton replied
that the Union could get him certain benefits such as
retirement, medical and dental insurance. With that the
conversation ended. Bleyer did not testify with regard to
this conversation and it stands in the record undenied.
appears that the charge was filed on the last day of the limitations penod set
forth in Sec. I0(b) of the Act.
131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin testified that during the 2-week period preceding
the election he had approximately five conversations with
Bleyer. Although he could not specify the exact date each
of them occurred, he did say that each took place in a
different area of the shop, including the lube area and the
tire balancing rack. No other persons were present. In each
of these conversations Bleyer asked Martin how he was
going to vote in the upcoming representation election.
Martin testified that he replied that he was not sure how he
would vote. Bleyer was not asked for his version of these
conversations and thus Martin's testimony stands in the
record undenied.
3. Increased health insurance premiums
Martin testified that approximately a week before the
election, apparently around Monday, October 20, Bleyer
met with shop employees about 8 a.m. shortly before
beginning work. Present were employees Martin, Little-
john, Fulton, Cox, Heinz Butzkat, Jim Dimitris, John
Javanovic, and a mechanic named Lou, whose last name
neither Martin nor Fulton could recall. Martin said that
during this meeting Bleyer stated that he was authorized by
the Company to tell the employees that if they did not vote
for the Union, the Company would pay their Blue Cross
benefits in full.
Fulton corroborated Martin,3 saying that he had come in
a little late that morning, and Bleyer had all of the service
employees in Butzkat's stall and was telling them that the
Company had authorized him to say that it would improve
the employees' Blue Cross benefits so that the Company
would pay for all of it instead of employees paying for half
of it. Both Martin and Fulton testified that upon hearing
this, Fulton said loudly, "Bullshit, you can't do that. That's
illegal."
During the week before the election Whiteman was in
Los Angeles attending a factory training school. Whiteman
testified that Bleyer telephoned him and told him that there
was a certain automotive part that he wished Whiteman to
obtain in Los Angeles and bring back to San Jose with him.
Then Bleyer reminded Whiteman that there was going to
be a union vote on Monday when Whiteman returned, and
told him to think about what the Company had been doing
for him, the different benefits and things they had given
him. Bleyer also said that the Company had decided to pay
the employees' family [health] insurance if the employees
voted the Union out. On cross-examination, Whiteman
retreated slightly, saying that Bleyer "allowed that this was
going to be an incentive for us to not vote for the Union to
come in. Like, one of the main things that we didn't have at
the time before the Union came in was family insurance,
and this would be just sort of an incentive. He didn't
specifically say how the outcome of the Union would vote
[sic]. He didn't specifically say that it wouldn't happen if it
was voted yes."
Bleyer did not deny making the statements attributed to
him at Butzkat's stall by Martin and Fulton, nor did he
deny Whiteman's version of the telephone call.
:3 Fulton's corroboration is one of substance only bfor he was not clear
with regard to the date. See discussion in fn. 6. infra.
Previous to this conversation, Respondent paid that
portion of the Blue Cross premium which covered
employees only. If an employee wished to obtain coverage
for his dependents he had to pay an additional sum for that
purpose himself.
Respondent's president, Don Lucas, testified that shortly
after acquiring the dealership, probably in early January
1975, he asked two subordinates to call for quotes from
different health insurance companies in order to determine
whether or not company-paid dependent health insurance
was economically feasible. He testified that he made the
decision to obtain dependents health insurance throughout
1975. Yet by the time the Union made its initial demand
for recognition on August 29, no specific plan had been
decided upon, nor was any evidence submitted tending to
show the results of Respondent's inquiry. Indeed, no such
plan was placed into effect until the collective-bargaining
contract was negotiated with the Union, after the Board
issued its certification. Lucas testified that he did not
pursue the matter after September 1975 because "unioniza-
tion would take care of that situation and make the
decision as to who the coverage would be through, since
the Union has their own program."
B. Fulton's Employment History and Discharge
Prior to being hired by Respondent on August 13,
Fulton, who was then 20 years old, had held trainee-type
auto mechanic jobs for three different foreign car dealer-
ships. None of these jobs had lasted for any significant
length of time, and prior to Respondent's hiring him, he
had been unemployed for 7 or 8 months. During that
period, Fulton says without elaboration that he "worked
for himself." His most recent formal job was with Carlsen
Porsche-Audi, where he had been employed as an appren-
tice mechanic, doing small chores including radio repair
and new car preparation work. He worked for Carlsen
from September 1973 to January 1974, at best a total of 5
months. Service Manager Bleyer made the decision to hire
Fulton after reviewing Fulton's application form, and
telephoning some of his former employers, including
Carlsen, as well as speaking to Fulton's father. Although
only implied in the record, it is apparent that Fulton's
father is a well respected mechanic. Bleyer testified that
after speaking to these references, he learned that Fulton
had good potential as a mechanic, but suffered from an
attitude problem. Bleyer said that even Fulton's father did
not speak favorably of Fulton's attitude.
Believing that Fulton's attitude toward employment
could be corrected, he decided to give Fulton a chance, and
told Fulton in general terms that he expected him to
improve his attitude - particularly by working together in
the shop, not talking to customers, not standing around
and talking to mechanics and that Respondent expected a
full 8 hours work for 8 hours pay. He then hired Fulton as
an "apprentice mechanic," and set his wage at the
equivalent of a second year apprentice under the union's
area agreement, with which Bleyer apparently was familiar.
Fulton's duties as an apprentice mechanic primarily
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SAN JOSE BAVARIAN MOTORS
consisted of new car preparations, known as predelivery
inspections or PDI's, and also light mechanical repairs
such as suspensions, brakes, wheels, tires, water pumps,
radiators, smog certifications, and used car repairs.
Respondent presented four witnesses who had occasion
to observe Fulton in the shop. These were Bleyer, Kim
Cochran, the parts department manager, Mike Mesaros, a
parts counterman, and Nancy Farotte, the office manager.
Each of these witnesses testified that from the beginning of
Fulton's employment until his discharge on October 20, he
displayed offensive work habits. These included loud radio
playing, aimless wandering throughout the shop and office
area, excessive visits to the washroom, inability to find
automobiles, excessive visiting with other mechanics and,
on some occasions apparently ignoring Bleyer's advice on
how to perform certain jobs properly. On one occasion
Fulton asked Bleyer how to perform a certain smog pump
job. After Bleyer explained how to do it, Fulton went to
Cox to obtain the correct tool, water pump pliers, because
he did not have such a tool in his own tool kit. Cox is one
of the younger mechanics, although he is considered to be
a journeyman. When Bleyer saw Fulton speaking with Cox,
he presumed that Fulton was asking Cox how to do the job
and was thereby ignoring the specific instructions which he
had just given Fulton, as well as some good advice
regarding consulting the older, more experienced mechan-
ics. Bleyer exploded. 4 Thus, while Bleyer may have been
incorrect in his conclusion that Fulton was ignoring the
specific instruction, Fulton's failure to have the pliers in his
toolbox does demonstrate to some extent that Fulton
indeed did display a less than meticulous attitude toward
his work. The tool was a common one which mechanics
normally possess, and his explanation to Bleyer was not
believed. Even so, the incident did not trigger his discharge,
but was merely another in a series of incidents which
Bleyer tolerated.
On September 17 and October 6 and 16, Bleyer held
private conversations with Fulton. Bleyer was not asked to
testify specifically about these sessions. Instead, his notes
relating to them, and which he had placed in Fulton's
personnel file were offered. The General Counsel voiced no
objection to their receipt, specifically conceding their
authenticity.
In the first, Bleyer noted that he had held numerous
conversations with Fulton about being a "loudmouth" and
a "wise guy" and to take advice given him. Then he
discussed an incident where Fulton had been in the general
office, ostensibly looking for the parts manager.5 He also
counseled Fulton about speaking to the younger less
experienced mechanics, rather than taking the advice of the
older more experienced mechanics.
In the second session, Bleyer counseled Fulton about the
fact that he had been instructed to either work by himself
or with the more experienced mechanics, but had dis-
obeyed the instruction and had moved a vehicle into a stall
4 The record is replete with references to Bleyer's temperament. There is
no doubt that Bleyer has a quick temper and tends to shout at employees.
He is a strict taskmaster.
I Parts Manager Cochran and Office Manager Farotte also testified
about the incident which was cited as an example of Fulton's time wasting
and leaving his work area.
6 The General Counsel asserts that Fulton's "uncontradicted testimony"
next to a younger mechanic (probably Cox) so that he
could talk to him while they worked. Bleyer also warned
Fulton about playing his radio and going to lunch in a
newly sold automobile with three other mechanics. At the
bottom of this note, Bleyer wrote "I told him this is his last
warning."
The two parts department employees as well as the office
manager all related incidents involving Fulton's wasting
time. In fact, Farotte testified credibly that shortly after
Fulton was hired, she began making a joke about Fulton
constantly being in the business office. She commented
that if Fulton lasts "it's going to be a miracle because none
of the other mechanics were allowed in [the office]."
Bleyer's October 16 note to Fulton's file reads:
Talk to Mike Fulton about his poor behavior not
listening to me, does his own thing. Mech. complaint
[sic] and parts dept. people, Mike stayed around. and
talks all the time. Told him that I had to lay him off by
10/22/75. he agreed. did not want to work any more.
he said.
Accordingly, it appears that Bleyer notified Fulton of
Respondent's decision "to lay him off' on October 16, but,
as Fulton testified, permitted him to work until the end of
the then current pay period, October 22.
Martin, as noted above, testified that Monday, October
20, was the day Bleyer announced the increased health
benefits during a meeting in Butzkat's stall, and that it was
then that Fulton told Bleyer that such conduct was illegal.
Both he and Fulton say that Fulton's words were:
"Bullshit, you can't do that. That's illegal."
Neither Fulton nor Bleyer could say with certainty that
the incident occurred on October 20. The best Fulton
could do was accept the General Counsel's statement that
it occurred during the week preceding his discharge.
Martin, however, did so, and there is no reason to question
the accuracy of Martin's memory, particularly as White-
man reported Bleyer's phone call on that subject occurred
during the week before the election. Thus both Martin's
and Whiteman's recollections are mutually corroborative.
Nevertheless Fulton testified that Bleyer told him on
October 20 that he was to be laid off. At first he testified
that the conversation with Bleyer relating to his discharge
was after work, but then said it was in the morning before
work. On cross-examination he again testified that the
conversation occurred in the afternoon, saying it was
between 4 and 5 p.m. Then, as on direct, he corrected his
testimony saying it took place about 9 a.m.
In any event, Fulton testified that during the October 20
conversation in Bleyer's office Bleyer told him he was to be
laid off due to lack of work. Fulton stated that he was
surprised and asked, "Is this because of my so-called
attitude, or this - and/or is this because of my union
affiliation?" Fulton reports that Bleyer replied," You might
shows that the conversation occurred I week before the October 27 election,
i.e., on October 20, and asserts that therefore Bleyer's decision to discharge
Fulton occurred on the same day that he publicly challenged Respondent's
promise to add dependents to the health insurance coverage. He is mistaken.
See Tr. 49-50 where the General Counsel asked Fulton to direct his attention
to "the week preceding your discharge." as a foundation for Fulton's
account of that conversation
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
say that. You could say that." Fulton then testified that
Bleyer said that he could continue to work to the end of the
pay period, which he believed was Wednesday, October 22.
Bleyer concedes that during the conversation in which he
told Fulton of his impending layoff he did advance lack of
work as one of the reasons for letting Fulton go. He also
asserts that in addition he told Fulton those reasons shown
on the memo quoted above.7 Bleyer's note on Fulton's
personnel file states that Fulton was dismissed because:
"Work unsatisfactory - slow on work - Troublemaker
working against Serv. Manager. Had cont[inuousl talks
with him."
Fulton also recalled that on October 22 he had another
conversation with Bleyer in his office. According to Fulton,
he told Bleyer: "[S]eeing as how I was laid off due to lack
of work, when business increased could I come back to
work there and resume my original position?" Bleyer
replied, "I wouldn't count on it, Mike. We don't want you
here. We don't like the way you operate."
In December, Whiteman had a conversation with Bleyer
in which Whiteman, who believed that Respondent had
signed a collective-bargaining contract with the Union,
asked why the contractual benefits had not yet begun.
Bleyer replied that he had not yet been informed that the
contract had been signed. After finishing that discussion,
Bleyer asked Whiteman who had actually started the
Union. Whiteman recalls Bleyer asking, "Was that Mike
[Fulton] or was that Bud [Littlejohn] that started the
Union to come in?" Whiteman replied, "It was neither one.
It was Chuck Cox who did." Whiteman testified that
Bleyer appeared surprised and after a moment asked, "Are
you sure about that?" Whiteman replied, "Yeah, I'm sure
that Chuck was the one who brought them in." The
conversation then ended. On cross-examination Bleyer
admitted that after the election was over he asked the
mechanics if Fulton was trying to get the Union in.
Analysis and Conclusions
In its brief, Respondent essentially concedes that it
violated Section 8(a)(1) in the manner alleged in the
complaint. Even without the concession, however, it is
clear that on July 13 Bleyer told the about-to-be-hired
Fulton that if he got involved in union activities he would
be fired so fast his head would swim. It is also clear that in
mid-September at the lunchroom meeting Bleyer told the
assembled employees that Respondent was opposed to
union representation and that anyone connected with the
Union would be fired. Both the July 13 and mid-September
threats are violations of Section 8(a)(l). The complaint also
alleges that a similar incident occurred on October 8;
however, no evidence was adduced with regard to an
October 8 incident. Accordingly, the complaint insofar as it
alleges an unlawful threat to fire employees on October 8 is
unproven.
The evidence also shows that Bleyer engaged in several
incidents of unlawful interrogation. First, Bleyer admitted
that during the mid-September lunchroom meeting he
asked employees about their union activities. 8 Second, in
I Bleyer and Fulton are in disagreement with regard to the date of the
conversation. Fulton testified it occurred on October 20: Bleyer's memo
persuades me that it was on October 16.
early October he asked Fulton if he was a good union man
and was for the Union. Third, 2 weeks before the election,
on five different occasions he asked Martin how he was
going to vote in the election. All of these incidents are
interrogations violative of Section 8(a)( ).
The last allegation relating to an independent 8(a)(1)
violation involved Bleyer's promise to increase health
benefits by adding employees' dependents to the existing
health insurance plan which then covered only the
employees. Both Martin and Fulton attended a gathering
at employee Butzkat's stall on or about October 20, a week
before the election. Both testified that Bleyer stated that he
had been authorized to tell the employees that the
Company would pay an additional health insurance
premium so that their family members would also be
covered. Whiteman, who was not present at that meeting
because he was attending a training program in Los
Angeles, reported that Bleyer telephoned him on approxi-
mately the same date to tell him the same thing. In view of
the timing of the promise, a week before an NLRB
election, and in view of Lucas' inability to state with
certainty that the Company had reached a firm decision
prior to the advent of the Union's organizing campaign to
grant this increased benefit, I conclude that Respondent
has not rebutted the presumption that the promise was
intended to influence the manner in which the employees
voted. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964),
and Rupp Industries, Inc., 217 NLRB 385 (1975). Accord-
ingly, I find that by making such promise Respondent
violated Section 8(a)(l). However, I do not believe it would
effectuate the purposes of the Act to issue a remedial order
here. See further discussion of this in section IV, infra.
The most difficult question presented by this case is
whether Respondent discharged Fulton for unlawful
reasons. Certainly the elements of an unlawful discharge
are present. Respondent engaged in several violations of
Section 8(a)(1), including two threats to discharge employ-
ees for favoring union representation. It knew that Fulton
was in favor of such representation via Bleyer's unlawful
interrogation of him. And, the timing of the discharge
closely preceded an NLRB election.
On the other hand it is also clear that Bleyer hired
Fulton, whom he knew had both a good potential as a
mechanic and an immature attitude toward work, in order
to give him a chance to straighten out. But he did not
straighten out; he became a nuisance and began stretching
Bleyer's patience. Fulton admits as much, saying Bleyer
regularly "yelled" at him for numerous minor personality
and attitude shortcomings. The question I must decide is
whether or not Bleyer's patience snapped because of
Fulton's union activities or because Bleyer concluded that
Fulton had been given a fair chance to prove himself, but
had failed.
To answer this question, a close analysis of the General
Counsel's case is necessary, for the burden of proof rests
with him. Although Respondent made two threats to fire
employees for union activities, neither is closely connected
to the timing of Fulton's discharge. The first, directed at
I This incident was not alleged in the complaint. Nonetheless as Bleyer
admitted it, I consider myself bound to find it unlawful.
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SAN JOSE BAVARIAN MOTORS
Fulton, occurred at the time of his hire in July, well before
any union organizing. The second occurred in mid-Septem-
ber, a week or so after the Union's August 29 demand for
recognition. It was a general threat, directed at all
employees, not specifically at Fulton. Moreover, there were
no threats made after that time. Instead Respondent relied
on interrogation and promises of benefit. It does not
appear that the Respondent fired anyone else during the
preelection period.
In addition, neither Bleyer nor any other management
official was aware of any role Fulton played in the
organizing effort. Their only knowledge of his prounion
feelings were the result of Bleyer's interrogation of him. Yet
Bleyer must have known that other employees also favored
representation. I do not accept Fulton's assertion that his
vocal opposition to Bleyer's health insurance benefit
promise occurred the week before he was discharged. The
testimony of Martin and Whiteman establishes that it
occurred on or after October 20, and not during the
previous week. Moreover, I must accept Bleyer's assertion,
made in unchallenged documentary evidence, that he
decided to terminate Fulton on October 16. Certainly
Fulton's shaky memory is not sufficient to refute Bleyer.
Thus, I must conclude that Fulton's vocal opposition to
Bleyer on October 20 played no part in Bleyer's decision to
fire him. That decision had been made 4 days earlier.
Even the two unrebutted "admissions" made by Bleyer
and reported by Fulton and Whiteman are not conclusive.
Fulton said that during the discharge conversation, he
asked Bleyer if he was being discharged because of his "so-
called attitude . . . and/or . . . [his] union affiliation."
Bleyer's supposed response was: "You might say that. You
could say that." Depending on voice inflection, Bleyer's
response could mean one of two things - either "yes, your
union affiliation played a part" or "if you want to believe
that your union activities played a part in my decision, you
may, but it didn't."
Likewise, Whiteman's account of his December conver-
sation with Bleyer is inconclusive. Bleyer asked Whiteman
if Fulton or Littlejohn was responsible for bringing in the
Union. One could conclude from Bleyer's question that he
suspected Fulton, or that he suspected Littlejohn, or both.
Yet nothing happened to Littlejohn. It could also mean
that the state of Bleyer's knowledge was so uncertain that
he could only hazard a guess - Fulton was a possibility
since he had been vocal on October 20 - 4 days after the
critical decision.
Even the discharge does not seem calculated to rid
Respondent of a strong union adherent. After Bleyer told
Fulton of his decision to discharge him on October 16, he
permitted Fulton to work until October 22, the end of the
pay period. Had Bleyer's decision been intended to rid
Respondent of a prounion advocate, it is unlikely that he
would have permitted a "loudmouth" like Fulton a week's
access to employees to campaign for the Union and to hold
himself out as a martyr.
Finally, I note that between Bleyer's "last warning" of
October 6 and his decision to discharge Fulton on October
16, Fulton engaged in no protected activities of which
Bleyer was aware. Indeed, there is no evidence that Fulton
engaged in any such conduct at all during that period. The
only thing that happened was Fulton's failure to heed
Bleyer's warning. His attitude did not improve. He merely
continued to display an insouciant attitude, and Bleyer
finally decided that he had had enough of Fulton.
Thus, the General Counsel's prima facie case for Fulton
is as follows: animus consisting of interrogation, promises
of benefit and two somewhat remote threats to discharge;
knowledge only that Fulton, like others, favored the
Union, but was not known to be more active than anyone
else; and timing consisting of the decision to discharge him
12 days before the election, but mitigated by Respondent's
permitting Fulton to continue working an additional week.
At best it is an extremely thin primafacie case.
Respondent's rebuttal consists of a credible nondiscrimi-
natory reason for discharging Fulton - he had finally
worn Bleyer's patience too thin and an unsupported and
maybe false reason - lack of work. Certainly Respondent
introduced no probative evidence that work had slowed
down. In fact both employees Martin and Whiteman
testified to the contrary. Martin noted that three new
service department employees were hired shortly after
Fulton's departure. Whiteman testified that he noticed no
significant change in the volume of work being performed.
There is case law, e.g., N.LRB. v. Shattuck Denn Mining
Corporation [Iron King Branch], 362 F.2d 466, 470 (C.A. 9,
1966), which permits me to find that a false or unsupported
reason advanced to justify a discharge may be taken as
evidence of illegal motive. However, I am loath to do so
here, particularly where Respondent's other reasons are
credible. The unsupported reason, in the circumstances of
this case, appears therefore merely to have been a means to
soften the blow. There is no doubt that Fulton was, from
Bleyer's viewpoint as a strict taskmaster, an undesirable
employee. That Bleyer had given him a chance to begin
with, placed Fulton at an immediate disadvantage. Yet
Bleyer still gave him a 13-1/2 week trial. When Fulton
showed no sign of maturing, and was unresponsive to
counseling, Bleyer simply gave up on him. Accordingly, I
must conclude that Respondent has rebutted the General
Counsel's weak prima facie case, and that therefore the
General Counsel has failed to prove by a preponderance of
the evidence, that Respondent's discharge of Fulton was
discriminatorily motivated. I shall therefore recommend
that the complaint be dismissed in that respect.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Credited
evidence establishes that Respondent violated Section
8(a)(1) in three different ways: (1) threatening employees
with discharge for engaging in union activities; (2)
interrogating employees regarding their union sympathies
and desires; and (3) promising them a benefit in the form
of increased health insurance premiums, thereby promising
coverage to the employees' dependents in order to
persuade the employees to vote against union representa-
tion. With regard to the first two violations I shall order
Respondent to cease and desist from making such threats
135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and from engaging in such coercive interrogation. How-
ever, because Respondent never actually granted the
increased premiums prior to the election, because the
Union won the election and was certified as the employees'
exclusive collective-bargaining representative and because
a collective-bargaining contract was subsequently negotiat-
ed which put the health insurance question to rest, I do not
believe that it would effectuate the purposes of the Act to
issue a cease-and-desist order thereon. Cf. Rosella's Fruit
and Produce Co., Inc., 199 NLRB 633 (1972), and Bowling
Corporation of America, Inc. d/b/a Algonquin Bowling
Center, Inc., 170 NLRB 1768 (1968). Accordingly, I shall
recommend that a remedial order with respect to that
violation not be issued.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Don Lucas International, Inc. d/b/a
San Jose Bavarian Motors, is an employer engaged in
commerce and in an industry affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge No. 93, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening employees on July 13, 1975, and in
mid-September 1975, with discharge in the event that they
sought union representation, Respondent violated Section
8(a)(1) of the Act. Respondent did not make a similar
unlawful threat on October 8, 1975.
4. By interrogating employees with regard to their
union activities, sympathies, and desires during various
dates in October 1975, Respondent violated Section 8(a)(1)
of the Act.
5. When it discharged Michael S. Fulton on October
22, 1975, Respondent did not violate Section 8(a)(1) and (3)
of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
136