Viking Body Repair, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 482 (N.L.R.B. 1971)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Viking Body Repair , Inc. and Garagemen , Repairmen,
Maintenance and Machine Warehousemen, Local
974, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 18-CA-2916
March 31, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On December 2, 1970, Trial Examiner James M.
Fitzpatrick issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial errror was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Trial Examiner- Upon charges
filed February 4, 1970 by Garagemen, Repairmen,
Maintenance and Machine Warehousemen, Local 974,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein called the
Union), the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 18
(Minneapolis, Minnesota), on June 17, 1970, issued a
I The complaint also alleged that the Respondent independently
violated Section 8(a)(I) of the Act by the conduct of its president Robert
Lysholm in telling its employees on various dates between July 30 and
August 6, 1969, that Respondent would never deal with the Union and
violated Section 8(a) (3) and (1) by discharging Bruce Anderson on about
complaint (which was amended on June 18) against Viking
Body Repair, Inc. (herein called Viking or Respondent).
The complaint alleged, and the Respondent's answer
thereto denied, that Respondent discharged Douglas
Roiger and Richard Jensen on January 30, 1970, in
violation of Section 8(a)(3) and (1) of the Act, and since
about August 6, 1969, has failed and refused to bargain
with the Union in violation of Section 8(a)(5) and (1) of the
Act I This case was tried before me at Minneapolis,
Minnesota on September 1, 2, and 3, 1970.
Upon the entire record, my observation of the witnesses,
and consideration of the briefs filed by the General Counsel
and the Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Viking, which has been in business since August 1968, is a
Minnesota corporation engaged at Bloomington, Minneso-
ta, in the repair of automobile and truck bodies at retail and
wholesale. During 1969 it sold at wholesale products and
services valued at over $50,000 to customers each of which
annually either buys or sells across state lines products and
services valued at over $50,000.
Robert Lysholm, Viking's president, is actively in charge
of the business. Two foreman are now employed, one to
supervise work on automobiles, the other on trucks.
Respondent admits that a bargaining unit consisting of
all its production and maintenance employees, including
repairmen, painters, and runners at its Bloomington,
Minnesota, location, and excluding office clerical employ-
ees, temporary and casual employees, guards and supervi-
sors as defined in the Act, constitutes an appropriate unit
for purposes of collective bargaining.
11 THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which admits to
membership employees of Viking, among others.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues presented are first whether Respondent in
discharging employees Douglas Roiger and Richard Jensen
on January 30, 1970, did so because they signed cards
applying for membership in the Union and supported the
Union, contrary to the proscriptions of Section 8(a)(3) and
(1) of the Act. A second issue is whether Respondent in
failing to respond to the Union's request for recognition on
August 6, 1969, and thereafter refusing to recognize the
Union thereby violated Section 8(a)(5) and (1) of the Act.
Further issues are whether evidence of conduct which was
the subject of previous 8(a) (1) and (3) charges which were
settled between the General Counsel and Respondent, the
terms of the settlement having been complied with by
August 6, 1969 At the hearing herein the General Counsel orally advised
he was not contending in this proceeding that such conduct violated
Section 8 (a)(1) and ( 3), but was relying on the asserted conduct for the
purposes of justifying a remedy for the alleged violations of Section 8(a)(5)
189 NLRB No. 65
VIKING BODY REPAIR, INC.
Respondent, is admissible on the issues of whether the
refusal to recognize was unlawful and whether, assuming a
violation of Section 8(a)(5) is established, a fair election is
impossible and an order requiring Respondent to recognize
and bargain with the Union is appropriate.
B. The Initial Union Organizing
I Conditions prior to organizing activity
From the inception of its operations Viking has employed
some employees who previously had worked in union
shops. From time to time additional employees with union
backgrounds have been hired. Thus in November 1968
Bruce Anderson, who had previously worked in union
shops, was hired. He was discharged August 4, 1969. The
asserted reasons for this discharge are treated hereinafter,
but in that regard, as early as May 1969 Viking's president
Lysholm began collecting job sheets on work done by
Anderson which following completion had been returned to
the shop because the work had been poorly performed.
From the beginning Viking paid its bodymen, painters,
and mechanic on a 50-50 basis; that is, the employee
received one-half of the amount charged the customer for
labor performed on each job. They also were guaranteed a
minimum wage equal to that provided for in the Union's
contracts with unionized body shops. Other employees,
such as painters' helpers and runners, were paid a straight
hourly wage. In addition Viking paid part of the cost of
hospitalization for all employees. At some time in 1969
prior to the advent of union organizing Viking president
Lysholm suggested to the employees that in the future an
employee profit-sharing plan be instituted in lieu of having
a union According to the credited testimony of employee
Lawrence Seldon, Lysholm said, "Instead of union, we are
going to introduce a profit-sharing plan that will greatly
outweigh the benefits that you would have with the Union."
The precise time of this statement is not clear from the
record, but it was before the union organizing began.
Nothing was said by management on the subject between
July 30 and August 6, 1969.
2. Union Activity
About July 1969 some of the employees, including
Anderson, began discussing among themselves the possibil-
ity of having the Union represent them To further the
matter Anderson telephoned the union hall with the result
that a union representative, John Robertus, met with these
employees at Viking and set up a general organizing
meeting for July 30, 1969, at the union hall.
Prior to this meeting one of the interested employees,
Dean Hitchcock, according to his credited testimony,
approached Viking president Lysholm and advised him
that most of the employees were dissatisfied with company
policies; that if things did not change they were going to try
to get the Union in and see if they could get a square shake
To this Lysholm replied that the Union would come into
the shop over his dead body and he would close the doors
1 Anderson had chronic financial difficulties as well as health
problems Lysholm had loaned him $300 on two separate occasions of
483
first before they ever entered the shop. He then stomped off
in a huff.
At the July 30 union meeting, attended by eight or nine
Viking employees, union representative Robertus explained
the benefits of union representation to the group and
passed out blank union authorization cards. The cards were
single purpose and unambiguous in language. The follow-
ing printed words appeared in boldface type, at the top of
the cards: "Authorization for representation under the
National Labor Relations Act." The text which followed
read: "I hereby authorize Local 974 of the International
Brotherhood of Teamsters to represent me on all matters
pertaining to wages, hours and working conditions." The
balance, of the face consisted of blanks to be filled out,
including the employee's signature. According to the
credited testimony of Robertus, he told the assembled
employees that their signature on the cards "merely
indicated an interest among the people as to whether or not
they wanted a union. They were told that a request for
recognition would be made on the employer, and if such
recognition demands were denied then an election would
be forthcoming." His remarks were in accordance with his
standard format in addressing employees during organiz-
ing.
Following the meeting, while Richard Jensen was at
Viking's shop waiting for a ride home, Viking president
Lysholm asked him what they were doing over there, and
when Jensen replied they were just checking on union
benefits, Lysholm angrily stated he was not going to have
any union in the shop, and that if he had one he would close
the doors.
While at the July 30 meeting five employees, Richard
Jensen, Bruce Anderson, Dean Hitchcock, Ralph Higgins,
and Lawrence Seldon, gave the Union signed authorization
cards Others took cards away with them and Higgins took
a supply of blank cards which he subsequently distributed
among employees at Viking's shop, explaining when he did
so that if enough signed they would be entitled to an
election. Some of the cards so distributed were later signed
and returned to Higgins by August 6. The employees who
returned signed cards to Higgins, who I find was acting on
behalf of the Union, included Norman Bute, Roger
Thompson, Merlin Hayden, and Gerald Nelson. As of
August 6 there were nine authorization cards signed and
collected on behalf of the Union. However, before August 6
Seldon told Higgins he had a long talk with Viking's
president and was sorry he had signed a card. Higgins also
knew Bute had changed his mind but was not sure whether
this was before or after August 6.
In the interim, however, Anderson was discharged on
August 4, his last day of work being August 6. As noted
above, Lysholm had since May been saving data on
unsatisfactory work performed by Anderson. All the
bodymen made minor mistakes, but Anderson was unique
in making numerous larger errors. According to Lysholm
he planned to fire him a week earlier but was diverted by
another matter. He thought he should have fired him long
before but felt sorry for him.2 He denied that union activity
affected his decision, but he also admitted that he knew
which $200 remained unpaid at the time of discharge and still remained
unpaid at the time of hearing
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anderson had called the Union and that this had made him
mad. He told him, "Bruce, I understand you want to work
in a union shop. I am going to make it easy for you. There
are a lot of them in town. You are through." According to
Lysholm, Anderson then asked if he was being fired
because someone had accused him of stealing, but Lysholm
denied that was the case, saying that he had a dozen good
reasons and that Anderson would save himself a lot of
embarrassment if he just left. According to Anderson he
asked if he was being fired because of the Union, and
Lysholm said, "That, among other things." And when
Anderson asked him what other things Lysholm replied,
"Well, we are missing a lot of tools and equipment and I
have been warned about you." In fact tools were missing
from the shop and whether or not Lysholm accused
Anderson of taking them, he as well as the other employees
suspected Anderson of being responsible. To the extent
there is any essential conflict between these versions, I
credit Anderson.
C. The Events of August 6
Anderson finished up on the job he was working on the
following day, August 5. The next morning, August 6, he
reported for work and asked the foreman to assign him a
job. But the foreman replied that he understood he was
fired and he would have to talk to president Lysholm.
Anderson then talked again with Lysholm who confirmed
that he was fired, saying, according to the credited
testimony of Anderson, that he would not have a union in
the shop, and, "I loaned you money when you needed it,
you go around, then you turn around and call the Union on
me." 3 Upon learning that his discharge was irrevocable,
Anderson immediately stepped next door to another body
shop (Teigen's) where he was hired starting the next day
with no interruption in wages.
After lining up the new job at Teigen's and prior to his
departure on August 6, Anderson's toolbox, with his
consent, was inspected by fellow employee Norman Bute.
This inspection turned up a company-owned power tool
known as a Porta Power, which had been missing from its
accustomed place on a shelf in the shop for about 10 days.
Anderson testified credibly that he did not really know how
it got there. In any case the discovery of the Company tool
in his box could have had no effect on his employment
status since he had already been discharged.
The parties have stipulated that as of August 6 the
appropriate bargaining unit consited of 17 employees? As
noted above, by August 6 the Union had nine authorization
cards in the hands of its business representative or of
Higgins, acting on behalf of the Union. Based on these
authorization cards, the Umon on August 6 sent Viking a
telegram asserting that it represented a majority of the
employees and requesting recognition as their bargaining
agent. The text of the telegraph message was telephoned to
Viking on August 6. A copy was delivered on August 7.
Viking made no reply at that time to this demand.
3 On advice of counsel Lysholm did not thereafter mention the Union
to the employees
4 The employees in the unit on August 6 were Bruce Anderson, Floyd
Blackstad , Norman Bute , Neal Ericson , Merlin Hayden , Ralph Higgins,
Dean Hitchcock, Richard Jensen, Day Leicht, Duane Lysholm, Myner
On August 6 the Union also filed with the Board a
petition seeking an election (Case 18-RC-8023), and
simultaneously filed unfair labor practice charges (Case
18-CA-2821) alleging violations by Viking of Section
8(a)(1) and (3) of the Act which had the effect of blocking
further processing of the election petition. The charges were
based on the alleged discriminatory discharge of Anderson
and remarks made by Viking president Lysholm.
After the shop closed for the day on August 6, three of the
employees, Seldon, Bute, and Blomberg, while sitting in the
lunchroom having coffee, discussed among themselves the
union situation including the fact that Seldon and Bute had
signed union authorization cards. They concluded this had
been a mistake. Bute's reasoning was that he had nothing to
gain from the Union because the 7 to 8 years he already had
spent operating his own body shop would not count as time
under the union retirement plan. Seldon felt that since they
were all working to get the business on its feet, the time was
not appropriate for introduction of the Union. With
Blomberg's help they drafted what seemed to them
appropriate language purporting to revoke their authoriza-
tions for the Union to represent them. Copies of the draft
were then typed by a Company secretary in the Company
office, who for some unexplained reason was present at that
time. Seldon and Bute each signed one. Their signatures
were witnessed by Blomberg and James R. Vetsch, a Viking
foreman. Seldon testified that he gave his revocation to
either Blomberg or Bute for the purpose of delivery to the
Union. Bute testified that they were given to Respondent.
The revocations were in fact deposited in the Company
office and were never delivered to the Union. Although the
circumstances surrounding the execution of these revoca-
tions is suspicious, especially since they came shortly after
Anderson's discharge, there is insufficient evidence to
establish that the Respondent instigated or arranged them.
Bute and Seldon, the only witnesses who testified about the
circumstances, both denied that management interfered in
any way. Bute was a disinterested witness who at the time
of hearing was no longer a Viking employee. The weight of
the evidence does establish that Seldon and Bute intended
thereby to recind their authorizations for the Umon to
represent them.
D. The Denial of Recognition
About mid-August, a week or 10 days after the Union's
initial request for recognition, union representative Rober-
tus, not having heard from Viking, renewed the request for
recognition in a telephone conversation with Viking's
attorney. The attorney denied recognition and suggested
instead that a Board election be held. Again, a week or two
later in another telephone conversation with Viking's
attorney, Robertus renewed the request a second time and
was again denied, the Company attorney again suggested
that an election be held. Robertus rejected the idea of the
election on the ground that the Union's majority had been
destroyed and a fair election made impossible by Company
Lysholm, William Nubson, Lawrence Seldon, John Kunkel, Gerald
Nelson, Roger Thompson , and James Blomberg Subsequently four of
these, Bute, Hayden , Hitchcock, and Nelson, voluntarily left Viking's
employ According to Higgins , some month-to-month turnover in
employees is normal for the business
VIKING BODY REPAIR, INC. 485
unfair labor practices, an assertion which Viking's attorney
denied . From time to time following their first conversation
Viking's attorney asked Robertus to indicate the number of
signed cards he had and the names of the signers. Robertus
declined to answer. Conversely, Company information
regarding employees not wishing to belong to the Union
was not disclosed to the Union. The record does not
establish that the cards themselves were shown to
Respondent or to a disinterested third party.
Around this same time, a couple of weeks or a month
after August 6, Viking management met with the employees
to explain its proposed future profit-sharing plan. By the
time of the hearing herein such a plan was actually in effect
although the record does not disclose precisely when it was
inaugurated.
E. The Settlement
On November 4, 1969 Viking executed a settlement
agreement with the Board's regional office covering the
8(a)(1) and (3) charges in Case 18-CA-282 1. On November
20 the Regional Director approved the settlement. It
required that Viking offer Anderson reinstatement, post
appropiiate notices and comply with the terms thereof. The
Union did not join in the settlement, but neither did it
request a review of the settlement by the General Counsel
pursuant to Section 102.19 of the Board's Rules and
Regulations. Following approval of the settlement Viking
in compliance therewith offered reinstatement to Ander-
son, which he declined , and posted the required notices.
The concluding provision of the settlement provides as
follows: "Contingent upon compliance with the terms and
provisions hereof, no further action shall be taken in the
above case ." The settlement agreement remains in effect
and has not been set aside.
On cross-examination union representative Robertus
agreed with counsel and he understood that the settlement
included the holding of an election after the notices were
posted . Following the posting of notices Respondent
requested him to go forward with an election but he
refused. This refusal "far preceded" the later discharges of
Roiger and Jensen on January 30, 1970.
F. The New Foreman
About December 15, 1969, Viking employed a new
foreman , James Chaffee, to supervise the work in its truck
body shop. Chaffee immediately set about familiarizing
himself with the work in the shop and the efforts of the
employees under him. After doing so he concluded that two
employees , Douglas Rotger, a painter's helper and runner,
and Richard Jensen , the mechanic, were incompetent and
should be discharged. He discussed his conclusion with
president Lysholm who indicated to him it was his
responsibility and he should do what he thought best. This
occurred around early or mid-January 1970.
G. Renewed Union Organizing
From time to time Robertus appeared at Viking's shop to
I do not view tardiness as a serious matter since shop practice was lax
in this regard
talk with employees . There was no management interfer-
ence with such union activities . In January 1970 the
employees again began discussing the possibility of union
representation . With company acquiescence Robertus met
with the employees in the company lunchroom on January
22. All employees were present including two brothers of
president Lysholm. Following the meeting union authoriza-
tion cards were made available to the employees . Roiger
and Jensen both signed cards . There is no specific evidence
that management knew that either individual had signed a
card. Both Chaffee and president Lysholm denied they
knew . On the other hand less than 20 employees were
employed in the entire shop and at the January 22 meeting
they openly discussed their views pro and con the Union so
that the views of the various employees was general
knowledge in the shop. Chaffee was aware there was union
activity in the shop, although he denied knowledge of the
January 22 meeting which was in another building.
President Lysholm knew cards were signed but denied
knowing who had signed . In the light of these circum-
stances, particularly the presence of two brothers of
Viking's president at the union meeting held in the
company lunchroom with company permission , I find that
Respondent had knowledge of the union activities of the
employees, including Roiger and Jensen.
The day following the meeting, January 23, employees
Seldon and Nelson approached president Lysholm and
asked for more definite information on the proposed profit
sharing plan which at that point was not yet in effect, so
they could make up their minds about having a union.
H. The Discharge of Roiger and Jensen
On January 30, Chaffee, with the approval of president
Lysholm, discharged Roiger and Jensen.
Roiger had been hired about September 8, 1969 as a
painter's helper and as a runner to perform errands in the
company truck . He testified that the reason given by
Chaffee when he fired him was that he was not doing his
job. From his own testimony it is clear that he was a
relatively inexperienced employee , that he was tardy or
absent on a number of occasions, that it was not unsual for
him to have a hangover from drinking , and that on
occasion , when out in the company truck doing errands, he
was slow in returning . However during the week before his
discharge, according to him, he had been at work every day.
He denied being reprimanded for absences or tardiness. In
his testimony Chaffee characterized Roiger as absolutely
irresponsible and absentminded , as well as tardy,5 absent
from assigned work duties without good excuse and
incompetent in his work as a painter 's helper to the point
where on occasion his work had to be redone by others
because of complaints from the painters . Chaffee also
testified he warned Roiger a number of times that he was
taking too much time on company errands and also that he
was not properly performing his duties as a painter 's helper.
I credit this testimony of Chaffee, who was corroborated by
Lysholm . His conclusion was that Roiger was costing the
Company money.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to Jensen, Chaffee testified credibly that he let him go
for many reasons, that he did nothing right although he had
ample opportunity to prove himself, and that his incompe-
tence had cost the Company a great deal of money
including the expense of sending mechanical work to other
shops after Jensen had fouled it up. He testified that prior
to January 22 and about 2 weeks before he terminated him
on January 30, he warned him about his bad work. Fellow
employees Bute and Seldon corroborated Chaffee. Bute
characterized Jensen as sloppy in his work and not
thorough. Seldon said he was slow and sloppy.
Jensen testified that when Chaffee fired him he sent him
to see president Lysholm who told him he had charged too
much time on the last job he had done and that he was
fired. Jensen admitted on the stand that he was a little slow
on some jobs but then said he was never warned that his
work was unsatisfactory. However, at a later point in his
testimony he testified that during the summer of 1969
foreman Vetsch complained to him that his work was slow
President Lysholm testified credibly that with respect to
Roiger he relied on Chaffee's judgment, that Chaffee had
complained to him about Roiger and he had twice told
Chaffee to give him another chance, but that finally he told
him to do whatever he thought right and Chaffee fired
Roiger.
As to Jensen the evidence is overwhelming that he was
incompetent. On his last two major jobs he charged an
excessive amount of time for labor to the point where
Lysholm suspected him of padding the account. Lysholm
testified, and I find, that on the next to last job he warned
Jensen for doing this and threatened to fire him if he did it
again. Jensen again charged a great deal of labor time to the
last big job, and he was thereafter fired. Lysholm was also
concerned with the safety hazard posed by Jensen's lack of
thoroughness in repairing such items as brakes.
1. Current Proceedings
As noted about the charges in the present matter were
filed by the Union on February 4, 1970 . Not long after they
were filed employee Lawrence Seldon asked Robertus to
withdraw the charges and cease further union organizing
until the Company could get on its feet. Robertus rejected
this request . The complaint was subsequently issued on
July 17 (and amended June 18), following which the Union
on June 30 withdrew its petition for an election (Case
18-RC-8023 ). This withdrawal was approved by the
Regional Director on July 1.
J. Discussion
1. The discharges of Douglas Roiger and Richard
Jensen
The evidence establishes that because of the incompe-
tence of Roiger and Jensen Viking had adequate grounds
for their discharge. The question remaining, however, is
whether this was the true reason or a mere pretext to
disguise unlawful discrimination.
Weighing in favor of the General Counsel's theory that
6 As indicated hereinafter I conclude that these events should be
considered only for the limited purposes of establishing background and
the discharges were pretextual in nature is the evidence of
company knowledge of union activity in January 1970 and
the very suspicious timing of the discharges a few days after
the union meeting. Of course president Lysholm and
foreman Chaffee both denied that union activity had
anything to do with the discharges. Lysholm testified it was
mere coincidence that the two events occurred so close
together, saying, "It just happened that way, that's all." His
statement is consistent with the lack of evidence of union
animus around the time of the discharges. Apparently on
advice of counsel, starting with the Union's first request for
recognition back in August 1969, he carefully avoided
commenting to the employees one way or the other about
the Union. The testimony of Robertus indicated that after
he demanded recognition there was no company interfer-
ence with his organizational activity. I note that the union
meeting of January 22 was on company premises.
The General Counsel reaches back many months earlier
to the events of August 6 and before to find union animus
on the part of the Company. For background purposes and
in assessing Respondent's motive, I have considered these
events, including the discharge of Bruce Anderson and the
remarks of president Lysholm, even though most of them
occurred prior to August 5, 1969 (the commencement of the
10(b) period for the present matter), and even though they
were the subject of a settlement of previous charges which
has not been set aside. See Local Lodge No. 1424, IAM v.
N.L.R.B., 362 U.S. 411 (with respect to pre-10(b) events);
Joseph's Landscaping Service, 154 NLRB 1384, enfd. 389 F.
2d 721 (C.A. 9) (with respect to conduct which has been the
subject of a settlement).6 From this prior conduct it is clear
that, until 5 months before the discharge of Roiger and
Jensen, Viking's president was firmly opposed to the Union
coming into the shop. In addition, at that time and shortly
before the Union's initial request for recognition, Ander-
son, one of the original union supporters, was discharged.
There is an obvious parallel between those events and the
later discharges of Roiger and Jensen which followed
closely on renewed employee interest in the Union.
With that history and given the coincidence of the union
activity in January with the discharges of Roiger and
Jensen, one might well infer that these later discharges were
motivated by a desire to discriminate even though other
grounds for discharge existed. However, there was one
further element in the mix, namely the advent of a new
foreman, Chaffee, on December 15. He was a new broom.
Prior to his coming managerial permissiveness had put up
with the absenteeism and unsatisfactory performance of
Roiger and even much more so the longstanding incompe-
tence of Jensen. Chaffee proposed the dismissal of Roiger
and president Lysholm went along with him on it. Chaffee
also complained to Lysholm about Jensen, who was not so
new an employee, and his recommendation, plus the fact
that Jensen on the last big job had in Lysholm's view again
padded the labor tab after having been warned for doing so
on a previous large job, were the factors which influenced
Lysholm to concur in his dismissal. The advent of Chaffee
goes to explain the change in management's attitude toward
Jensen from one of permissiveness to one demanding
motivation
VIKING BODY REPAIR, INC
efficiency on the part of the employee. The same may be
said regarding Roiger. I view as inconsequential the fact
that Roiger was not reprimanded during his last week of
employment.
In balancing the factors indicating discriminatory
discharge of Roiger and Jensen against those indicating the
contrary, I conclude that they were not pretextual.
Although the cases of Roiger and Jensen are not free from
doubt, I conclude that the presence of Chaffee in the
picture tips the scales in favor of finding the discharges
legitimate where, as here, the evidence of good cause for the
discharges is very substantial and there is no evidence of
union animus reasonably close to the events. Accordingly, I
conclude that a preponderance of the evidence fails to
establish that Roiger and Jensen were discriminatorily
discharged in violation of Section 8(a)(3) and (1) of the Act
and I recommend that the allegations in the complaint so
alleging be dismissed.
2 The refusal to bargain
The Union claims to have had, as of August 6, 1969,
authorization cards from 9 of the 17 employees in the unit,
including that of Bruce Anderson. As of the evening of the
same date the Company claims to have had in hand
revocations of such authorizations from two card signers
(which revocations were never communicated to the Union
although it knew in other ways of the defections).
Respondent also takes the position that Anderson was
legitimately removed from the bargaining unit at the end of
the day. The Union asked for recognition on August 6. At
the time the Company remained silent in regard thereto and
not until a week or two later when the Union reiterated its
request did the Company refuse recognition. But although
the Union asked for recognition on and after August 6,
there is no evidence that it affirmatively demonstrated or
offered to demonstrate that it actually had a majority of
cards. It only asserted that it had them. Thus faced with a
demand for recognition from a union which claimed to
represent a majority of its employees, Viking, instead of
granting recognition, suggested that a Board election be
held to determine the representation question in accord-
ance with the pending petition already filed by the Union.
Regardless of subjective motivation Respondent could
lawfully take this position provided it is not shown to have
committed serious contemporaneous unfair labor practices
which tended to undermine the union majority and made a
fair election an unlikely possibility. N.L R.B. v. Gissel
Packing Co, 395 U.S 575; Aaron Brothers, 158 NLRB
1077; Manner Chevrolet, Inc., 176 NLRB No. 32; United
Buckingham Freight Lines, 168 NLRB 684. I conclude that
on the record properly before me no such unfair labor
practices are proved because the evidence which might
establish the alleged violations of Section 8(a)(1) and (3) on
and before August 6, 1969, should not be considered.''
My reasons are first that Respondent's conduct in
discharging Bruce Anderson and the remarks by its
president on and before August 6, 1969, were the subject of
' In view of this disposition it is unnecessary to determine whether the
Union represented a majority of the employees Snap Out Binding &
Folding, Inc, 166 NLRB 316, Shelby Williams of Tennessee, Inc, 165
NLRB 737
487
8(a) (1) and (3) charges which were settled between
Respondent and the General Counsel. That settlement is
still viable, never having been set aside . Although not an all
party settlement, the Union not joining in it, the Union did
not appeal the Regional Director's approval thereof as
allowed by the Board's Rules and Regulations and should
not now be heard to protest. It was the Union's
understanding, as well as the asserted understanding of
Respondent's counsel, that as part of the total deal a Board
election would be held following compliance with the terms
of the settlement . Cf. Tompkins Motor Lines, Inc., 142
NLRB 1, 3-4, reversed on other grounds 337 F.2d 325 (C.A.
6). The General Counsel does not assert that Viking has not
complied with the settlement . On the contrary at the
hearing and in his brief he agrees that the settlement has
been complied with. In these circumstances where the
General Counsel refuses to set aside the settlement it seems
to me that he should be bound by the terms and spirit of the
settlement and Respondent, having given what was asked
by way of compliance, should have what benefits, if any,
flow therefrom. If Respondent must still litigate the essence
of the cause of action settled, much of the consideration for
the agreement will have evaporated. Considering the
administrative importance of settlements as an alternative
to litigation in disposing of the Board's burgeoning unfair
labor practice case load,8 I conclude that as a matter of
policy the settlement here should not be circumvented
except for the limited purposes of assessing motive and
background for the present case . At the hearing I reserved
ruling on Respondent's objection to the receipt of evidence
of conduct covered by the settlement except for such
limited purposes. I now sustain that objection. Tompkins
Motor Lines, Inc., supra, fn. 8.
This limitation of the backward look is consistent with
established Board practice in considering evidence relating
to objections to an election. Thus in the present matter, if
an election had been held and thereafter objections filed
thereto, conduct prior to August 6, 1969, the date on which
the election petition was filed, would not be considered in
determining whether the election should be set aside and a
new election held.
Further I note that events prior to August 5, 1969,
including the discharge of Anderson on August 4, were
outside the 10(b) period for the charges which gave rise to
the present complaint. If, contemporaneous with its refusal
to recognize the Union, Viking by such conduct was guilty
of serious unfair labor practices which undermined the
Union's asserted majority and made a fair election unlikely,
evidence thereof , insofar as it establishes objective
circumstances essential to the General Counsel's cause of
action under Section 8(a)(5), is barred by Section 10(b) of
the Act (Local Lodge No. 1424, 1AM v. N L.R.B., supra),
and insofar as it goes to show subjective motivation, it is
irrelevant. N L.R B. v. Gissel Packing Co., supra.
Considering the evidence properly before me, I find it
insufficient to sustain the General Counsel's cause of
action. Viking was entitled to insist in the circumstances on
8 In fiscal year 1968, 264 percent of the 17.777 unfair labor practice
cases closed by Board's regional offices were disposed of by settlement
Thirty-third Annual Report, N L R B , pp 6,7 U S Govt Printing Office,
1969
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an election, a proceeding which the Union never went
forward with. Viking's refusal to recognize the Union,
absent any properly proved contemporaneous unfair labor
practices, did not amount to an unfair labor practice within
the meaning of Section 8(a)(5) and (1) of the Act.9
Accordingly those allegations of the complaint should also
be dismissed.
CONCLUSIONS OF LAW
1. Viking is an employer within the meaning of Section
2(2), engaged in commerce within the meaning of Section
2(6), and in business activities affecting commerce within
the meaning of Section 2(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent, including repairmen, painters, and runners at
it Bloomington , Minnesota , location , and excluding office
clerical employees , temporary and casual employees,
guards and supervisors as defined in Section 2(11) of the
Act, constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
4. By the conduct alleged in the complaint herein
Viking has not engaged in unfair labor practices within the
meaning of Section 8(a)(3), (5), and (1) of the Act affecting
commerce within the meaning of Section 2 (6) and (7) of the
Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
9 In view of this disposition of the refusal to bargain question, I do not
reach the issue of remedy