Springfield Dodge, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1429 (N.L.R.B. 1975)

SPRINGFIELD DODGE, INC.
Springfield Dodge , Inc. and Teamsters Union Local
No. 929, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 4-CA-7144
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On April 16, 1975, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
and Charging Party filed briefs in opposition to
Respondent'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 has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
herein modified.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Springfield Dodge, Inc., Springfield, Pennsyl-
vania , its officers, agents, successors , and assigns,
shall take the action set forth in the said recommend-
ed Order, as modified.
In paragraph 1(c) substitute the words "In any
other manner" for "In any like or related manner."
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C .A. 3, 1951 ) We have
carefully examined the record and find no basis for reversing her findings
2 In par 1 (c) of her recommended order, the Administrative Law Judge
uses the narrow cease and desist language , "like or related," rather than the
broad injunctive language, "in any other manner," the Board traditionally
provides in cases involving serious 8(a)(3) discrimination conduct , such as
that found here. See N LR B v . Entwistle Mfg Co., 120 F.2d 532, 536 (C.A
4, 1941), Electrical Fittings Corporation, a subsidiary of I-T-E Imperial
Corporation, 216 NLRB No 179 (1975 ) Accordingly , we shall modify the
order to require Respondent to cease and desist from in any manner
infringing upon employee rights.
DECISION
STATEMENT OF THE CASE
1429
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge filed on November 21, 1974,1 by
Teamsters Union Local No. 929 (the Union), against
Springfield Dodge, Inc. (Respondent), a complaint was
issued on January 23, 1975, alleging that in November
Respondent, through its supervisors and agents, Kenneth
W. Hess, general service and parts manager, and Harvey L.
Kent , night service manager , interrogated employees
concerning union activities in violation of Section 8(a)(1)
of the Act,2 and on November 18 discriminatorily
discharged employee Robert S. Lombardo in violation of
Section 8(a)(3). In its answer to the complaint, Respondent
admitted the supervisory status and agency of Hess and
Kent and admitted that they had spoken about the Union
with employees. However, Respondent denied that the
conversations were violative of the Act. Additionally,
Respondent's answer admitted the discharge of Lombardo
but affirmatively alleged that he was discharged "for wilful
misconduct." 3
Pursuant to due notice, a hearing was held before me in
Philadelphia, Pennsylvania, on February 25, 1975. All
parties were represented by counsel and were afforded full
opportunity to be heard, to present oral and written
evidence, and to examine and cross-examine witnesses.
The parties waived oral argument at the end of the
testimony.4 Posttnal briefs have been filed on behalf of the
General Counsel and Respondent.
Upon the entire record,5 together with careful observa-
tion of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
I. PRELIMINARY FINDINGS
The complaint alleges, the answer admits, and I find
that:
A. Respondent, a Pennsylvania corporation, with its
place of business in Springfield, Pennsylvania, is engaged
in the retail sale and maintenance of automobiles . During
the past calendar year, Respondent 's gross revenues
exceeded $500,000 and during the same period Respondent
i Except as otherwise specified , all dates herein are in 1974.
2 National Labor Relations Act, as amended (61 Stat . 136, P.L 93-360,
29USC Sec 151,etseq)
3 A few days before the scheduled hearing the Charging Party Union
filed a motion for bill of particulars requesting that Respondent be required
to amplify its answer by "clarifying and setting forth specific reasons for the
discharge of Robert S . Lombardo." This motion was denied at the outset of
the hearing.
4 At my request, however , Respondent 's counsel set forth his position as
to the nature of the "wilful misconduct" for which Respondent claimed
Lombardo had been discharged.
5 As corrected , in minor respects , by an Order issued simultaneously
herewith.
218 NLRB No. 219
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchased goods valued in excess of $50,000 directly from
firms located outside Pennsylvania. Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Evidence
Respondent called no witnesses. Its testimony was
limited to examination of Hess, its general service and
parts manager, whom the General Counsel called and
examined as an adverse witness under rule 43(b) of the
Federal Rules of Civil Procedure. In addition, Respondent
introduced certain record evidence to support its position
that Lombardo was discharged for cause. Thus, in large
part the findings of fact here made are based on
uncontradicted evidence of the General Counsel's witness-
es. Significant or substantial denials or contradictions by
Hess are noted. To the extent that there are additional
conflicts between the testimony of the General Counsel's
witnesses and Hess, the General Counsel's witnesses are
credited because, as hereafter shown, Hess' testimony was
demonstrably unreliable in several respects.
1. The General Counsel's affirmative case
Respondent, an automobile dealership, maintains a
service department consisting of about 10 mechanics on
the day shift (8 a.m. to 4:30 p.m.) and 5 on the night shift
(4:30 p.m. to 1 a .m.). Lombardo, the alleged discriminatee,
worked on the night shift at the time here involved.
Lombardo had originally worked for Respondent from
October 1970 to August 1972, when he moved to Florida.
At that time Respondent gave him a favorable letter of
reference for other employment. He returned to work as a
mechanic for Respondent in January 1974 and continued
until sometime in March, when he injured his back. He was
out until May 7, when he started to work for Respondent
as a service writer. On July 7, he quit because of
dissatisfaction with his pay. Early in October, at the
request of Ray August, Respondent's service manager at
the time , Lombardo resumed employment as a mechanic
on the night shift. His admitted discharge from that job on
November 18 is the subject of this proceeding.
Early in 19716 an independent union initiated an
organizing campaign among Respondent's mechanics, who
were pressing for a pay raise. William Walsh, Respondent's
president,7 then stated that the mechanics would receive a
raise if they voted against the Union. Walsh also suggested
that the men could form a "grievance committee" or
"inside union" at no cost to themselves rather than
6 Testimony concerning the 1971 events was admitted as background
evidence , over Respondent's objection The evidence was uncontradicted
7 Walsh was present at the hearing but did not testify
8 The General Counsel advised that the United Independent Union filed
a representation petition on February 18, 1971, and withdrew it the next
day
9 At the hearing the General Counsel stated that Kodadek had been
incurring the expense of dues to an outside umon. A vote
was taken, by secret ballot, and the union lost .8 The
mechanics thereafter received the promised wage increases.
A three-man grievance committee was created, which is
still in existence and meets with management about once a
month. The evidence is clear that the members of the
grievance committee have frequently sought wage increas-
es and have always been opposed to an outside union.
During the lunchbreak between 9 and 9:30 p.m. on the
evening of November 7, 1974, a representative of the
Charging Party Union visited Lombardo at the shop.
Lombardo received union authorization cards, which he
thereupon distributed among the other night-shift mechan-
ics. The next day, when he went to the shop to get his
paycheck, he remained for around 2-1/2 hours, during
which time he distributed some 9 or 10 union cards among
the day-shift mechanics. A few of these mechanics refused
to take cards from Lombardo.
Early in the evening shift on November 8, mechanic
Robert Kodadek was called into Hess' office. Hess testified
that he called Kodadek into the office to discuss some
company business and that in the course of the conversa-
tion he asked Kodadek who was passing out union cards.
According to Hess, Kodadek replied that he did not know
because he had not been at work the night before.9 Hess
also testified that when several mechanics voluntarily gave
him the union cards they had received, he asked them who
was handing out the cards but they all refused to reply. On
November 11, Hess held a meeting of the night-shift
mechanics. At that meeting Hess "asked what the story
was with the Union" and who was distributing union
cards. The latter question was not directly answered.
George Gilbert, a mechanic, asked what was wrong with
the Union and Hess said nothing. Lombardo asked if it
was "illegal" and Hess said no. Lombardo testified that
Hess then showed the employees some employee report
forms and said that if the Union came in an employee
receiving three such disciplinary reports would be dis-
charged. Hess had instituted the use of such report forms
when he assumed his duties with Respondent in February
1973. However, they had been discontinued in June of the
same year. Hess testified that at the meeting on November
11, 1974, he did tell the employees that if the Union came
in he could reinstitute the use of such reports as proper
"documentation" and that a mechanic could be fired if he
received three incident reports. He further corroborated
Lombardo's testimony that the company had never had
any policy regarding the number of infractions which
would warrant an employee's discharge.
Lombardo also credibly testified that at the November
11 meeting Hess said that it might take considerable time
for a union contract to be negotiated and in the meantime
the employees would be out on strike. Hess attributed a
somewhat similar statement to employee James Godmo. It
is possible that the two men agreed as to the possibility of a
served with a subpena to testify at the hearing but had not shown up In
support of his request for an adjournment in order to have the subpena
judicially enforced, the General Counsel offered to prove that Kodadek
would testify inter alia that when he was called into Hess' office on
November 8 he "was questioned solely about whether he knew who was
passing out the union cards - and no other topic was discussed." The
motion for adjournment was denied
SPRINGFIELD DODGE , INC. 1431
strike , since the evidence indicates there was considerable
employee opposition to unionization.
Later on the night of November 11, Harvey L. Kent,
night service manager , told Lombardo that on November 8
Hess had instructed Kent to discharge Lombardo but Kent
felt it was not his responsibility since he had found
Lombardo an eminently satisfactory employee . According
to Lombardo , within a few days thereafter Kent asked
Lombardo if he was involved with the Union . Lombardo
testified that he could not recall whether he replied
"directly yes , or just smiled at him and walked away."
The complaint alleged that on November 15 Kent
interrogated an employee . In its answer Respondent
admitted that Kent was a supervisor and agent and
"admitted that Harvey L . Kent discussed Unions with an
employee on November 15, 1974." The answer alleged,
however, that "the discussion was a personal conversa-
tion," in which Kent was not acting as Respondent's agent.
However , Kent did not testify and Respondent adduced no
evidence to support the allegations in its answer.
Lombardo testified that when he reported to work on the
evening of Friday, November 15, he was called into the
office, where Hess told him he should look for other work.
When Lombardo asked if Hess did not want Lombardo
around any longer, Hess indicated that the decision had
not been his. In response to Lombardo 's next question,
Hess denied that Walsh was responsible . According to
Lombardo , Hess said "if Walsh knew about this you
wouldn't be here right now." Hess then said that
Lombardo was a "troublemaker " and it was other
mechanics who objected to his presence because he was
"taking the bread and butter off their table ." Lombardo
explained the possible basis of this view by indicating that
certain mechanics had generally received preferred jobs,
that is, the more profitable repair jobs , and that under a
union contract such preferences probably could not be
granted . Lombardo testified that when he questioned some
of the other mechanics , they in effect denied having made
such statements . However, it appears that Hess had held a
meeting with the day-shift mechanics , who were vocally
(and possibly unanimously) opposed to the Union and had
sought Hess' help in keeping it out . According to
Lombardo , Hess said Lombardo could remain until he
found another job.
Lombardo testified that on the evening of Monday,
November 18, he reported to work and asked Kent for an
assignment. Kent replied that he could not give Lombardo
any work until he received advice from Hess , who was then
meeting with Walsh and Russ Colbert, Respondent's
accountant. About 10 minutes later Hess called Lombardo
into the office . Hess reminded Lombardo of their conver-
sation of the previous Friday about Lombardo's looking
for another job. In answer to Lombardo 's request for an
explanation , Hess said that Lombardo was a "trouble-
maker" and did not "come up to company standards."
Hess would not further specify . Lombardo took his final
paycheck and left . He returned about 8 : 30 p.m . to get some
things out of his toolbox . Walsh was present then and
suggested other dealers for, whom Lombardo might
work . Walsh said that Hess probably had good reasons for
firing Lombardo but Walsh did not know anything about
it. Lombardo then asked Hess if he could have his job back
and Hess refused . A little later, while Lombardo was
talking with another mechanic , Hess came up and ordered
Lombardo to remove his toolbox immediately . The toolbox
is so large as to be unmoveable without a truck . Lombardo
became angry and threatened Hess with physical violence.
However , within a very few minutes Lombardo quieted
down and apologized . At that point Hess offered him
recommendations to other jobs. Hess thereupon tele-
phoned a Plymouth dealership for which he had previously
worked . Hess highly recommended Lombardo for a job.
After the telephone conversation , Hess informed Lombar-
do that he had a job at the other dealership . Lombardo
testified that he then filed an application but, as of the time
of the hearing, he had not been hired by that company.
After his discharge by Respondent, Lombardo applied
for unemployment compensation. His claim was denied
without hearing . The reason for the denial set forth in the
notice of determination issued by the Bureau of Employ-
ment Security of Upper Darby , Pennsylvania, was that he
had been discharged "for reasons which are considered
wilful misconduct . . . because of excess lateness, and
absences." 10 With the exception of the typewritten words
"excess lateness , and absences," the quoted language is
printed in the form.
Mechanics , Joseph R. Ciavarelli , Jr., and David Seidel,
both members of the grievance committee described above,
testified that at a meeting with the grievance committee
after Lombardo 's discharge Hess stated as the reason for
the discharge only that there was a problem as to
Lombardo 's insurability as a result of the back injury he
had suffered in March . It was apparently at this meeting
with the grievance committee, after Lombardo 's discharge
that Hess announced the grant of a wage increase which
the committee had previously requested as a means of
preventing unionization but which Hess had refused to
discuss during the organizing campaign.
2. Respondent's defense
At the hearing Hess first maintained that it was his
decision alone to discharge Lombardo and the decision
was based solely on Lombardo's excessive lateness and
absences . He maintained that he had spoken to Lombardo
about these alleged deficiencies at least twice . However,
Lombardo denied that Hess had ever spoken to him about
this matter individually. According to Lombardo, the
question of lateness had been raised at a group meeting but
Hess' remarks were obviously directed at several other
employees whose records were considerably worse than
Lombardo's. Hess conceded that, although the situation
has apparently been considerably improved as of the
present time , before Lombardo's discharge , the night-shift
mechanics frequently complained that they could not work
at the beginning of their shift because all the bays were
occupied by day-shift mechanics staying over to finish
jobs . Whatever the reason, timecards in the record show
because , through a misunderstanding on Lombardo's part , it was not timely10 Lombardo's subsequent appeal from this determination was denied
filed
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Hess admitted that night-shift mechanics frequently
arrived after the prescribed 4:30 p.m. starting time
Hess testified that he talked to Lombardo about two
absences on October 22 and 24. Hess suggested that he had
thought Lombardo was sick on those occasions but became
upset when he learned that Lombardo had simply taken
time off to go "upstate" to engage in "illegal" hunting.
Hess testified that Lombardo explained that he was out of
town at these times and could not call in. Hess also
specifically referred to another absence, on October 16,
when there is no apparent doubt that Lombardo was sick.
Hess then testified, somewhat vaguely, that around
November 11 or 12 he talked to Lombardo again about his
lateness and probably a 1 day's absence in the prior week.
Lombardo's timecards show that Lombardo did not clock
in or out the night of November 6. However, there was no
testimony concerning that night. Hess clearly indicated
that he based the discharge solely on the three absences in
October, in addition to alleged excessive tardiness. When
asked if there had been an unexcused absence, Hess said:
"It was dust absenteeism, in general." The timecards in the
record show that Lombardo had been out on November 5.
On the remaining 4 days of that week he had been early
twice, on time once and 12 minutes late I day. However,
on 2 days he had punched out 1 hour and 24 minutes after
the stated end of the shift.
Hess insisted that Lombardo's record was worse than
any of the other employees. However, the timecards in
evidence show that during the period involved two
mechanics, Robert Kodadekii and George Gilbert, con-
sistently arrived considerably later than Lombardo did.
The documentary evidence thus fails to substantiate Hess'
conclusory testimony that Lombardo's attendance com-
pared unfavorably to that of his night-shift colleagues.
At the hearing Hess testified concerning a "chargeback"
made against Lombardo. This incident involved work
which Lombardo performed on October 14 in an attempt
to remove a squeak from a car. Ray August, Hess'
predecessor, had written the service order to show this
work as correction of an electrical short circuit. The reason
for his doing that was so that the manufacturer would bear
the expense under its warranty. The manufacturer's
representative who was then stationed at Respondent's
shop discovered the fraud. Lombardo was then charged
back for the pay he had received for doing the work.
Lombardo credibly testified, without contradiction, that
such "phony" warranty claims were not unusual in
Respondent's operation, at least under August's manage-
ment of the service department.12 Lombardo testified,
without contradiction, that other mechanics had had
chargebacks; at least some of them had had more than
one; yet there was no evidence that any others had been
discharged therefor. The evidence leaves no doubt that
11 At the hearing , without offering any testimony , Respondent 's counsel
maintained that Kodadek was scheduled to start work at 5 p in rather than
at 4 30 , when the shift began . Such fact, if established , would not explain
away the chronically substantial tardiness recorded on Gilbert 's timecards.
In addition, both Kodadek and Gilbert appear to have left before the end of
the shift more often than Lombardo did.
12 The variety of false claims under the manufacturer's warranty, as
revealed by Lombardo , was startling . According to Lombardo it was such
claims that explained the extended presence of a manufacturer 's representa-
tive in Respondent's shop
August had initiated the false warranty claim involved.
And Hess testified that he had said he would cancel the
chargeback against Lombardo if Lombardo produced a
statement by August assuming responsibility. Thus it
cannot be said, as Respondent apparently now contends,
that Lombardo was discharged, in part at least, for
passively cooperating in a fraudulent warranty claim.
Late in his testimony, when it was pointed out that the
absences and chargeback alleged as the reason for the
discharge had occurred about a month before the dis-
charge, Hess for the first time mentioned two "comebacks"
on work which presumably Lombardo had done. However,
Hess unequivocally conceded that he had never concluded
that Lombardo had been at fault or guilty of improper
performance in either instance. Kent, who had handled the
matters, did not so inform Hess. It should be noted here
again that Kent had refused to follow Hess' instruction to
discharge Lombardo and Kent did not testify. At the
hearing Hess conceded that Lombardo was an "adequate
mechanic." And, as previously noted, Hess recommended
Lombardo as a "top-notch" mechanic for employment by
another company.
B. Conclusory Discussion
I. Section 8(a)(1)
Hess conceded that, as alleged, he questioned employees,
both individually and collectively, as to who was distribut-
ing union cards. There can be no question that such
questioning, designed to single out and identify union
activists, violates Section 8(a)(1) of the Act.
Similarly, it is uncontradicted that Kent, an admitted
supervisor, asked Lombardo if he was involved with the
Union. That question also clearly was coercive, particular-
ly where, as here, it was so shortly followed by the
employee's discharge.
2. Section 8(a)(3)
Respondent's union animus appears not only from the
coercive interrogation here found, but also by Hess' threat
of reinstituting disciplinary reports and adoption of a
policy calling for discharge for three reports.13 In addition,
the uncontradicted evidence concerning Respondent's
method of frustrating the union campaign in 1971
reinforces the finding of confirmed union animus. This
inference is further corroborated by a repetition of similar
conduct in the granting of a wage increase in 1974, shortly
after Lombardo's discharge.14
Respondent maintains that the General Counsel has
failed to show that Respondent knew of or suspected
Lombardo's union involvement when he was discharged.
13 The complaint does not allege this conduct as violative of Section
8(aX1) and the General Counsel's brief does not request any such finding
Accordingly none is here made
14 Postdischarge conduct is relevant in determining motive Angweil
Curtain Company, Inc v NLRB, 192 F.2d 899 (C.A. 7); NLRB v.
Elwood C Martin, Fred A Nemec and Robert W. Nemec, d/b/a Nemec
Combustion Engineers, 207 F 2d 655 (C A. 9), cert denied 347 U S. 917
SPRINGFIELD DODGE, INC. 1433
At the outset, it should be noted that Hess' bare denial of
such knowledge or suspicion is entitled to little, if any,
weight, particularly since , as noted below, other portions of
his testimony were demonstrably unreliable. Cf. Teamsters,
Local 633,[Bulk Haulers, Inc.] v. N.LR.B., 509 F.2d
490 (C.A.D.C., 1974); Shattuck Denn Mining
Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966);
N. L. R. B. v. Edward P. Tepper, d/b/a Shoenberg Farms, 297
F.2d 280, 284 (C.A. 10, 1961).
It is true that Lombardo apparently believed that no
management representative knew at the time that he was
distributing umon cards although he apparently did so very
openly on both the day and night shifts. It is also true that
the only direct evidence of knowledge was Lombardo's
testimony that, in answer to a direct question, he
acknowledged his union support to Kent, either expressly
or by a smile. Again Kent's failure to testify is significant.
Interstate Circuit, Inc. v. United States, 306 U.S. 208;
Golden State Bottling Company, Inc. v. N.LRB., 414 U.S.
168, 174 and fn. 3 (1973); San Francisco Local Joint
Executive Board of Culinary Workers et aL (McDonald's
System of California, Inc.) v. N.LRB., 501 F.2d 794, fn. 12
(C.A.D.C., 1974).
Like motivation, Respondent's knowledge of union
activities may appear from all the circumstances. A. J.
Krajewski Manufacturing Co., Inc. v. N.L.R.B., 413 F.2d
673 (C.A. 1, 1969); N.L.R.B. v. Melrose Processing Co., 351
F.2d 693 (C.A. 8, 1965).
There is no dispute that Hess knew of the union
campaign by November 8, the day after the union
representative visited and Lombardo then first distributed
union cards. Hess conceded that, either by his questioning
or by employees' voluntary disclosure, he knew that all but
1 or a very few of the 15 mechanics were opposed to the
Union and several had asked his assistance in keeping the
Union out.
At one point he testified that he asked who was
distributing cards because "being management [he ] should
know these things." 15 He admitted that he continued his
inquiries even after November 11. Hess testified that he
decided to discharge on November 14. On the next day he
told Lombardo to look for another job. But then on
November 18, at the conclusion of the meeting with
President Walsh, Hess summarily and finally discharged
Lombardo. The circumstances thus all clearly compel the
conclusion that at least by November 14 Hess knew that
Lombardo was responsible for distributing union cards
among the mechanics.
The timing of the discharge in itself is "persuasive
evidence" of Respondent's discriminatory motivation.
N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497,
502 (C.A. 2, 1957), cert. denied 355 U.S. 829 (1957);
N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 983
(C.A. 3); Donna Lee Sportswear, 174 NLRB 318, 327, enfd.,
435 F.2d 559 (C.A. 3, 1971).
Perhaps most indicative of Respondent's unlawful
motivation is Hess' temporizing vacillation. At one point
he said that the precipitating factor was "based on the
lateness and absenteeism , and [he] found out" that
Lombardo had been out hunting when he was absent for 2
days. When it was called to his attention that the two
hunting absences had occurred some 3 or 4 weeks before
the discharge, Hess said that "the charge-back made me
[him] come to the conclusion" to discharge Lombardo. But
then he was reminded that the chargeback incident had
happened a month before the discharge. He then, for the
first time, referred to two "comebacks" on repairs
performed by Lombardo. However, he candidly admitted
that he had no reason to believe that Lombardo had been
at fault in either instance.
It is also significant that Respondent listed only lateness
and absences as the reason stated for opposing Lombardo's
unemployment compensation claim . Possibly even more
significant is the fact that Hess told the employee grievance
committee that the problem was related to Lombardo's
insurability after his back injury. If Lombardo had been
guilty of excessive tardiness and absence, it is reasonable to
assume that Hess would have so informed the grievance
committee , if only to emphasize, as Hess testified, that
Respondent's business was such that it could not tolerate
such conduct.
Finally, the documentary evidence does not support
Respondent's contention that Lombardo was guilty of
excessive tardiness and absence. His attendance record was
at least as good as the average of the night-shift employees.
The inadequacy of Respondent's explanation of the
discharge reinforces the inference of discriminatory moti-
vation. N.LRB. v. Minnotte Manufacturing Corp., 299 F.2d
690, 692 (C.A. 3, 1962); Burk Brothers v. N.LR.B., 117
F.2d 686-687 (C.A. 3), cert. denied 313 U.S. 588.
CONCLUSIONS OF LAW
1. Springfield Dodge, Inc., is and has been at all times
material herein an employer engaged in commerce within
Section 2(2), (6), and (7) of the Act.
2. Teamsters Union Local No. 929, a /w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
union activities, Respondent has violated Section 8(a)(1) of
the Act.
4. By discharging Robert S. Lombardo on November
18, 1974, and thereafter refusing to reinstate him, Respon-
dent has discriminated in regard to hire and tenure of
employment to discourage membership in a labor organi-
zation, and is thereby committing unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent has committed violations
of Section 8(a)(1) and (3) of the Act, I shall recommend
that it be required to cease and desist therefrom and take
affirmative action designed to effectuate the policies of the
Act, in accordance with usual Board practice in such cases.
Having found that Robert S. Lombardo was discrimina-
tonly discharged, I shall recommend that Respondent be
15 This statement is more credible than Hess' later testimony that he did
not pursue his inquiry of Kodadek because he "didn't feel, really, that was
any of (his I business at that point."
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required to offer him full and immediate reinstatement,
with backpay to be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), with 6 percent
per annum interest in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 16
Respondent, Springfield Dodge, Inc., its officers, agents,
successors and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters Union Local
No. 929, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, by discnminatorily discharg-
ing any employees or by discriminating in any other
manner in regard to hire and tenure of employment or any
term or condition of employment.
(b) Coercively interrogating any employees concerning
the union activities of themselves or of other employees.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist a labor organization, to bargain collectively
through representatives of their own choosing, to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activity.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Robert S. Lombardo full and unconditional
reinstatement to his former job (or, if such position no
longer exists , to a substantially equivalent job) without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he has
suffered as a result of the discrimination against him, in the
manner set forth in "The Remedy" section of this
Decision.
(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 determine the amount of backpay due under
the terms of this Order.
(c) Post at its premises in Springfield, Pennsylvania,
copies of the attached notice marked "Appendix." 17
Copies of said notice, on forms provided by the Board's
Regional Director for Region 4, shall, after being duly
signed by Respondent's authorized representative, be
posted in said premises by Respondent immediately upon
receipt thereof and 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 to assure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
16 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board had found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
We intend to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT interfere with your exercise of these
rights.
WE WILL NOT discriminate against any employees by
discharging them, or in any manner, to discourage
membership in Teamsters Union Local No. 929, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization.
WE WILL offer Robert Lombardo immediate and full
reinstatement to his former position in our Springfield,
Pennsylvania, service department, and wE WILL com-
pensate him, with interest, for any loss of pay he
suffered because we fired him.
WE WILL NOT question you about the union activities
of any employees.
SPRINGFIELD DODGE, INC.