Webber American, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1971

194 N.L.R.B. 692 (N.L.R.B. 1971)

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Webber American, Inc. and International Association
of Machinists and Aerospace Workers, AFL-CIO.
Case 3l-CA-2194
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
December 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 31, 1971, Trial Examiner Herman
Corenman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.
HERMAN CORENMAN, Trial Examiner: This matter was
heard at Los Angeles, California, on May 25, 26, and 28,
pursuant to charges and amended charges filed on
December 19, 1970, December 28, 1970, and March 2,
1971, by International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the Union.
On March 5, 1971, complaint issued on behalf of the
General Counsel of the Board by the Regional Director of
Region 31, alleging violations of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, herein
called the Act. Webber American, Inc., the Respondent
herein, filed its answer denying that it engaged in the
violations alleged in the complaint. At the hearing the
parties were afforded full opportunity to introduce relevant
evidence, to examine and cross-examine witnesses, to argue
orally on the record, and to submit briefs. Briefs submitted
by counsel for the General Counsel and by counsel for the
Respondent have been carefully considered.
Upon consideration of the briefs, my observation of the
witnesses, and the entire record' in this case, I make the
following:
FINDINGS OF FACT
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 Trial Examiner and hereby orders that
Webber American, Inc., Lawndale, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
i In reaching the same conclusion as the Trial Examiner that the
economic reasons assigned by the Respondent for the termination of the
five employees were pretextual, we do not rely on his discussion of
Respondent's November and December 1970 sales figures in relation to the
sales figures of the months preceding in 1970. We feel the record is not
clear as to whether the sales figures of those preceding months take into
account the figures of the auto dealership with which the Respondent
merged in November 1970 We do adopt the Trial Examiner's findings
regarding the facts that in December 1970 the five employees had ample
work in progress when they were terminated and that in months prior to
November and December 1970, when work had been slack in comparison,
there had never been a layoff of mechanics in the service department
because of lack of work
The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F.2d 362 (CA. 3) We have carefully examined the record and
find no basis for reversing his findings
1. THE BUSINESS OF THE RESPONDENT
The pleadings establish, and I find, that the Respondent,
with its principal office and place of business located at
Lawidale, California, is engaged in the sale and service of
new and used motor vehicles. Respondent, in the course
and conduct of its business operations, annually receives
gross revenues in excess of $500,000, and annually
purchases and receives goods and supplies valued in excess
of $50,000 from suppliers within the State of California who
have received such goods and supplies directly from outside
the State of California.
By virtue of its aforedescribed operations, Respondent is
now, and has been at all times material, an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, is now, and
has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
i The transcript of the record is corrected in accordance with the
General Counsel's unopposed motion as shown in Appendix B attached to
this Decision [Omitted from publication.]
194 NLRB No. 109
WEBBER AMERICAN, INC. 693
III. THE UNFAIR LABOR PRACTICES
A. The Issues
In issue are the following questions: (1) whether the
Respondent's termination from employment of employees
Robert Farrington, Gary Oler, Burt Quackenbush, Dean
Saunden, and Robert Wilcox on December 15, 1970,
violated Section 8(a)(1) and (3) of the Act; (2) whether the
Respondent made a valid and sufficient offer of job
reinstatement to Burt Quackenbush on or about January 6,
1971; and (3) whether the Respondent unlawfully interro-
gated employee Richard Bush on December 14, 1970, in
violation of Section 8(a)(1) of the Act.
B. Preliminary Statement
The Respondent operates a Toyota agency in Hermosa
Beach, California, known as Webber Toyota, which is not
involved in this case. Prior to November 1, 1970, the
Respondent for some time had also operated an American
Motors dealership known as Webber American, Inc., at
Hermosa Beach.
On November 1, 1970, the Respondent, having pur-
chased another American Motors dealership known as
South Bay American at Lawndale, California, closed down
his American Motors dealership in Hermosa Beach and
moved the entire operation, including its Hermosa Beach
work force,, to Lawndale where operations and work force
were combined under the same corporate identity of
Webber American, Inc., Respondent herein.
C. The Union's Organizational Drive
About 10 or 12 of Respondent's employees, included
among them Saunden, Wilcox, and Quackenbush, attended
a union organizational meeting presided over by Union
Business Representative Thomas R. Burniston at the
Copper Penny, a restaurant in Hermosa Beach. Burniston
discussed the advantages of union organization and passed
out to those present at the meeting authorization cards and
membership cards with instructions to sign the cards and
return them to him with a $10 organizational fee for each
applicant.
Burniston received 11 authorization cards and member-
ship applications together with $100 in organizational fees
on December 14, 1970. On that same date, namely
December 14, Burmston addressed a letter to the Respon-
dent requesting recognition and bargaining. This letter was
received by the Respondent on December 15, 1970, and on
December 17, 19''0, Respondent's counsel replied by letter
expressing doubt that the Union represented a majority of
the employees in an appropriate unit and declining to
recognize or bargain with the Union.
Discussion of union organization and union solicitation
was carried on by employees in the shop in the period from
about November 18 to the second week in December and
most union cards were signed on December 1 and 2, 1970.
Respondent's body shop. He had attended the November
25 union organizational meeting and had signed a
membership application on December 2, 1970. At the end
of the workday at 9:30 p.m. on December 14, 1970,
according to Bush's credible testimony, he was approached
by Service Manager Gordon Olson, an admitted supervisor,
who asked Bush "if there was a list, if Bush knew anything
about a list going around the shop against the Company."
Bush told Olson "No." Olson also asked Bush if he knew
any of the names that were on the list. Bush's answer was
"No." Olson inquired if Bush's name was on the list and
Bush replied "No." I do not credit Olson's denial that he
questioned Bush about such a "list." Olson concedes that
he did converse with Bush at the end of the workday on
December 14, 1970, but testified that he had learned from
an insurance adjuster that Bush was intending to leave the
Respondent's employ to operate another body shop.
Consequently, testified Olson, "I went back to see Mr.
Bush, and I asked him what was going on, and he said to
me, if I remember correctly, and these were his exact words,
that he didn't know what I meant by `what was going on.' I
said to him that he knew what I meant." Olson concedes
that in this conversation with Bush he made no mention of
this reported job offer mentioned to him by an insurance
adjuster, although he had that in mind as the subject of the
conversation. I am unable to credit Olson's version of his
conversation with Bush. It is beyond belief that Olson
would have spoken in such ambiguous language as he
describes if he in fact wanted to know if Bush was leaving
the Respondent's employ as reported to him. Moreover,
Olson's version of this conversation with Bush is more in
keeping with a conversation he had with employee Gary
Oler on December 15, 1970, which will be described later in
this decision.
I find that Olson's interrogation of Bush, abovedescribed
by Bush, was calculated to learn the identity of union
adherents and the extent of the union organization going on
amongst the employees in the shop. This type of
interrogation, I find, restrains and coerces employees in the
exercise of their right to engage in union organizational
activity and violates Section 8(a)(1) of the Act. Engineered
Steel Products, Inc., 188 NLRB No. 52; N.L.R.B. v. Canico,
Incorporated, 340 F.2d 803 (C.A. 5). This interrogation of
Bush engaged in by Olson, I find, was not based on
innocent curiosity but for "information most useful for
discrimination." N.L.R.B. v. Firedoor Corp. of America, 291
F.2d 328, 331-332 (C.A. 2).
E. The December 15, 1970, Terminations of
Farrington, Oler, Quackenbush, Saunden, and Wilcox
On December 15, 1970, Service Manager Olson, at about
8 a.m., notified five of its auto mechanics and body shop
employees, as they arrived for work that morning, that they
were being terminated and they were ordered immediately
to remove their tools and return their uniforms. The
circumstances surrounding their terminations are set forth
in greater detail below.
D. Richard Bush's Interrogation by Service
Manager Olson 1. Dean Saunden
Richard Bush was employed as a metal man in the Saunden had been employed by the Respondent since
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April or May 1970. He had previously worked at
Respondent's Hermosa Beach dealership and was moved to
the Lawndale dealership presumably on or about Novem-
ber 1, 1970. Saunden had also worked for Webber Toyota,
also owned by Webber, as a line mechanic, overhauling
automatic transmissions, performing engine valve jobs,
brake jobs, tuneups, and electrical work. When Saunden
returned to Webber American, his work was primarily as a
transmission expert overhauling transmissions at the
Hermosa agency and subsequently at the Respondent's
agency in Lawndale. Saunden was compensated strictly on
a commission basis equal to 50 percent of the labor charge
on any job. The labor charge is fixed by a flat rate manual
issued by the manufacturer, irrespective of the actual time
consumed on a job. Saunden attended the November 25
union organizational meeting at the Copper Penny
restaurant. Saunden signed and turned in his union
authorization and membership cards together with the $10
organizational fee to employee Phil Anderson for transmit-
tal to the Union. Saunden assisted in union organization
within the shop in the 2-week period from about 1 week
before the November 25 organizational meeting and 1 week
following it. His organizational assistance consisted in
talking up the Union with other employees, among whom
were Wilcox, Quackenbush, Farrington, and "about
everyone." Other employees turned in their signed union
cards to Saunden who in turn handed them to Phil
Anderson for transmittal to the Union.
On December 15, 1970, Saunden and fellow employee
Wilcox rode to work together. When they walked into the
front door of Respondent's showroom, they were met by
Service Manager Olson who abruptly told them they were
being laid off for lack of work, and they were directed by
Olson to remove their tools from the shop. Olson permitted
them to borrow the company truck to haul away their tools
and return their soiled uniforms from their homes. This
they did. Olson did not tell the two how long they would be
laid off or if and when they would be recalled. On the
following afternoon, December 16, Saunden and Wilcox
called on Olson at the Respondent's shop to request a layoff
slip and a letter of recommendation which Olson had
promised for a later time. The layoff slip and recommenda-
tion did not come, and Saunden again contacted Olson
within a week or 10 days. Olson again promised to furnish a
layoff slip and recommendation, but never kept his
promise.
After Saunden's December 15 termination, he was never
recalled to work at the Respondent. Saunden, in the
company of Wilcox on Monday, January 11, 1971,
reapplied in person for work to Service Manager Olson.
The two were prompted to reapply for work by a newspaper
ad in the classified want ad section in a local newspaper
called the Daily Breeze issued Sunday, January 10, 1971.
There were two ads in this January 10 paper, one
advertising for "Mechanics-Tune up man - and for Line
Mechanic ; the other for an experienced metal man in the
body shop.
Saunden on this occasion told Olson that he had seen the
ad in the newspaper and was applying for the mechanics
job. Olson told Saunden the job had already been filled. On
this same occasion, Wilcox applied for the metal man job in
the body shop as that was his line of work. Olson told
Wilcox that the position had already been filled. When
Wilcox asked Olson why he had not been called back for
the job, Olson replied that he was looking for someone
better. Saunden testified credibly, and I find, that at the
time of his termination on December 15, he was repairing a
Rambler station wagon involving a complete differential
overhaul and a major brake job and also was working on a
Toyota that he was converting from a "drag car" into
"street legal." This involved replacing the cam shaft, the air
pollution equipment, and the carburetor.
2. Robert Gordon Wilcox
Wilcox had been employed by the Respondent off and on
since December 1969. Between December 1969 and
January 1970, he was a metal man and painter in the body
shop. He also worked for a while as a line mechanic and
transmission man. For a while in early 1970, Wilcox
worked for a Santa Monica dealer but was rehired by the
Respondent in May 1970, when the Santa Monica dealer
quit business. Wilcox started in May 1970 as a line
mechanic but after 3 months he was transferred to the body
shop. Wilcox's earnings, like that of all mechanics except
the used-car and the new-car-get-ready mechanic, was
computed on a commission basis equal to 50 percent of the
labor cost. As was the custom with all mechanics on
commission, Wilcox would receive a draw on the 15th of
the month and the balance due on earned commissions at
the end of the month.
Wilcox attended the union organizational meeting at the
Copper Penny restaurant on November 25, 1970. He did
not receive an authorization or membership card at the
meeting as they ran out, but Union Representative
Burniston mailed a stack of blank union cards to Wilcox
subsequent to the November 25 meeting. Wilcox took the
cards to work and passed them out to the people who had
not yet received any. Wilcox testified that there were
approximately 16 people employed in the service depart-
ment, namely body shop and auto mechanics. Wilcox
testified credibly and without contradiction that he talked
to other employees in the shop about the pros and cons of
the Union, and he spoke up in favor of the Union because
of the Kaiser Insurance feature providing for cosmetic
surgery which he personally needed. Wilcox testified that
he spoke favorably for the Union to Bob Farrington in
connection with the Kaiser Insurance feature, and also to
Bush and Willis and to everyone in the body shop. Wilcox
credibly testified that he saw some of the employees sign
their union cards in their work stalls. Wilcox turned in his
signed union cards and $10 organizational fee to Dean
Saunden.
As I have set forth earlier in this decision in connection
with Dean Saunden's termination, Wilcox and Saunden
were terminated at 8 a.m. on December 15, 1970.
According to Wilcox's credible testimony, Service Manager
Olson called Saunden and Wilcox aside and told them that
due to lack of work, they were going to have to let some
employees go, and "we were to be let go." Wilcox asked
Olson if he wanted him to go ahead on the cars that he had
started, to which Olson replied "No, just to get my tools
together and get out of the shop." Wilcox testified, and I
WEBBER AMERICAN, INC.
find, that he had work yet to be done at the shop as follows:
a car in his stall requiring the installation of two new car
doors and pulling out of the post, and in addition eight
other cars in the process of completion on which he had
been working. Wilcox and Farrington, who was also
terminated that same morning, were given permission to
use the company parts truck to haul their tools home and to
return to the shop with their uniforms. Olson at first
promised to give Wilcox a layoff slip but later refused, to
give him one with the remark that it wasn't necessary.
Olson instructed Wilcox to "flag out" 2 his work with Ted
Smith, the body shop manager. While so engaged with
Smith in the body shop office, a customer came in to
request body work on his car. Smith told the customer that
"He was having a personnel problem and he couldn't do it;
that there was no one to paint his car," and at this point the
customer left the shop.
I have already related earlier in this decision the
applications for work made by Saunden and Wilcox3 on
January 11, 1971. Wilcox testified that as soon as Service
Manager Olson saw him and Saunden get out of their car,
Olson came running out to the car and inquired what they
wanted there. When Olson told the two men that the
advertised jobs had already been filled, Wilcox asked Olson
why only two of the body shop stalls had tools in them if the
jobs had already been filled, but Olson just turned around
and walked off.
3. Gary Oler
Oler started working for the Respondent in November
1970 as a new-car-get-ready man 4 at a flat salary of $700
per month. Previously, he had been employed by Webber
Toyota and was transferred from that dealership agency to
the Respondent's business at Lawndale. Oler did not attend
the November 25, 1970, union organizational meeting. He
obtained the union membership and authorization cards
from Robert Wilcox, completed them and returned them to
Dean Saunden who handed them over to Phil Anderson
together with the $10 organizational fee.
Oler arrived at work at 8 o'clock on the morning of
December 15, 1970, and went to the showroom to punch in
and could not find his timecard. Olson called Oler over and
told him that he had the timecard, and he was sorry but he
had to terminate Oler for lack of work. Oler asked if that
was the reason he was being terminated and Olson replied,
according to Oler's credible testimony, "yes because of lack
of work and also that he was just following orders." Olson
told Oler to remove his tools and return his uniforms to get
his check. When Oler returned to the shop that same day,
Gordon approached Oler to talk to him. Oler credibly
testified as follows: "He (Olson) asked me what was going
on. I told him that he probably knew what was going on."
When Oler went into John Willis' work stall to talk to him,
Olson came over and told Oler not to talk to the employees.
Oler then sat on the shop steps and waited and, while sitting
there, Olson, according to Oler's credible testimony, asked
him two more times what was going on to which Oler
2 "Flag out" means to compute amount of commission earnings
3 Wilcox was applying for the metal man's job in the body shop
4 The new-car-get-ready man checks the new cars coming in from the
factory to see that they are mechanically fit in every respect before delivery
695
replied that Olson "knew what was going on." Oler asked
Olson why he was firing so many people and whether he
didn't think he had enough men to cover the work that he
had, and Olson replied that "he had enough employees to
cover it until business picked up again, and I believe he
mentioned that he was only following orders." Oler told
Olson it was a poor time to be fired, that is, just before
Christmas, and Olson again told Oler "that he was dust
following orders."
Concerning work to be done when he was terminated on
December 15, Oler credibly testified, and I find, that "we
had six cars from the Rambler factory, and I was told to go
through them and order parts for them, and when the parts
were to come in, I was to put them together in my spare
time.. . . I had plenty of work and this was as of December
15." Oler pointed out in his testimony, which I credit, that
the new model 1971 cars had been coming in rapidly and it
was his job to get them ready "so that there will be enough
cars in stock and so that we can sell them without waiting
for them." 5
Olson on December 15 did not tell Oler how long he
would be out of work. Within 3 or 4 days after his
termination, Oler found employment with another automo-
bile dealer. On January 6, 1971, Olson came out to Oler's
new place of work and asked Oler if he would like his old
job back. Oler declined the offer, and told Olson that he
was now working for $800 a month and he would not return
for $700 a month.
4. Robert Farrington
Farrington had been employed by the Respondent since
February 1970 and worked continuously until his termina-
tion on December 15, 1970. He was a painter in the body
shop, and he was paid on a commission basis equal to 50
percent of the customer labor charge. He received no salary
or guarantee. He did not attend the November 25, 1970,
union organizational meeting at the Copper Penny
restaurant. He received authorization and membership
cards from employee John Willis and signed and returned
them to Willis on December 2, 1970. Willis advanced the
$10 organizational fee for Farrington who repaid Willis.
Concerning his termination on December 15, 1970,
Farrington testified that he came in to work that morning
with Robert Wilcox and Dean Saunden. Olson called
Wilcox and Saunden aside and told them that due to lack of
work, he was going to have to terminate some people.
Farrington credibly testified that he went to the body shop
where John Willis, -another body shop employee, asked if
Farrington had been fired. Farrington replied "not yet."
Farrington then sought out Body Shop Manager Ted Smith
to inquire if he was to be fired. Smith told Farrington that
Olson said he (Farrington) was questionable. At 9 o'clock
that same morning, Olson told Farrington "that due to lack
of work, they were going to have to terminate some
people." Farrington said "O.K." Olson did not tell
Farrington that he would be called back. While Farrington
was gathering up his tools, he asked Olson what was going
to the customer.
5 Oler testified without contradiction that on December 15, Olson knew
that Junius Pete, who helped O1er on new-car-get-ready, was quitting after
Christmas, having been so notified by Pete
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on and Olson's reply was that it was "lack of work which
was the reason for the termination." Farrington told Olson
that he did not think it was lack of work in the paint shop.
Olson replied that was all he could tell him. Farrington
testified credibly that at the time of his termination on
December 15, he had three or four spot jobs and a few cars
to buff, which he had previously painted and needed
further work. Farrington testified that this was not a slack
period for him, it was an average period for volume of
work.
On New Year's Eve, December 31, 1970, Olson called
Farrington at his home and asked him to return to work.
Farrington accepted the offer and returned to work with
the Respondent on January 5, 1971, as a painter, and at the
time of the hearing was still in Respondent's employ.
5. Burt Quackenbush
Quackenbush had been in Respondent's employ from
February 15, 1970, to December 15, 1970. He had
previously been employed by the Respondent at the
Hermosa Beach store, and he moved to the Lawndale store
when the Respondent bought out South Bay American in
November 1970. His job was auto mechanic, working on
air-conditioning installations, tuneups, brakes, lubrication,
front end, etc. He started at the Lawndale store as a line
mechanic, was moved to the lubrication stall when the
lubrication man left and then to the tuneup when the
tuneup man left. Quackenbush' s earnings were computed
on a commission basis equal to 50 percent of the customer
labor charge. He attended the union organizational meeting
at the Copper Penny restaurant on November 25, 1970, and
turned in his signed umon,membership and authorization
cards to fellow employee Saunden.
When Quackenbush arrived at work at 8 a.m. December
15, 1970, he was met at the showroom door by Olson who
told him that there was a lack of work and certain
employees were to be terminated. Quackenbush replied
that he supposed that he was one of them and Olson said he
was right. Olson told Quackenbush to roll up his tools and
turn in his timesheets and get out of the place as soon as
possible.
Quackenbush testified credibly that his work was not
slack and he considered it a peak period. He further
testified, and I find, that at the time of his termination on
December 15, he had a Chevrolet in his stall with a long list
of things to be done that he had not yet begun, and this
work had been assigned to him the previous day. In
addition, he had a Rambler on which to install an antenna,
and a Jaguar which required work and an Oldsmobile
which he had not completely finished working on.
Subsequent to his termination by the Respondent,
Quackenbush found employment with a Chrysler-Plym-
outh dealer. On January 6, 1971, Olson called on
Quackenbush at his new place of work and offered him his
job back with the Respondent. Quackenbush at the
moment was unprepared to give a definite answer to
Olson's offer. Olson told Quackenbush he would be there
only a short time, only 5 minutes, and he wanted an answer
as he had other applications for thejob and was in need for
someone to fill the position immediately. Quackenbush told
Olson he had a very bad taste in his mouth about Webber
American and that he would like to give him an answer
sometime later . Pressed for an immediate answer, Quacken-
bush told Olson that he liked the job and could not decide
that fast, but under the circumstances he was not going
back to work for him.
I agree with the General Counsel that a valid offer of
reinstatement was not made to Quackenbush who was
given only 5 minutes to make his decision to accept or
decline, notwithstanding the fact that Quackenbush was
undecided and informed Olson he needed more time to
decide. See Betts Baking Co., 173 NLRB No. 157; Harrah's
Club, 158 NLRB 758; Thermoid Co., 90 NLRB 614; Collins
Mining Co., 177 NLRB No. 55; Portage Plastics, 163 NLRB
753.
Respondent's assigned reasons for the terminations
of Saunden, Wilcox, Oler, Farrington, and
Quackenbush
Service Manager Olson testified that on December 14,
1970, he held a meeting with Mr. Webber and in that
meeting recommended the layoff of some employees on the
basis of Olson's conclusion that there was going to be a
definite decrease in business in December. Mr. Olson
testified concerning his December 14 , meeting with Mr.
Webber as follows:
I showed him the amount of personnel that we had
brought over from the old dealership into the new
dealership, and based on the downward trend of
business, the layoffs in the aero-space business, and
Christmas coming up, that if we were going to operate
for that month and be able to operate, we were going to
have to cut some personnel.
Reiterating his reasons for the terminations, Olson
testified later in the hearing as follows:
... Mr. Webber and I together decided that we
had to make some cut backs, because of the lack of
work for an economy move, and because of Christmas,
and because of the aerospace industry cutting down.
Mr. Webber did not decide who it would be. This is my
job, and this is left up to me.
I have concluded that the reasons asserted by Olson in
justification of the five terminations do not withstand
scrutiny and are not supported by the facts.
Company records clearly show that at the time of the
layoffs there was no diminution in the dollar volume of
auto mechanics or body shop repair. (See Appendix A
attached hereto for a tabulation of customer mechanical
labor, customer body shop labor, labor factory claims and
totals thereof for the months of February 1970 through
February 1971.) Indeed, the month of November 1970,
which was the last complete month prior to the Respon-
dent's December 14 decision to terminate the five
employees involved in this case, had the greatest dollar
volume of labor sales of any of the other months in the 13-
month period, February 1970 through February 1971. Even
though December 1970' s sales were necessarily diminished
due to the layoff of the five mechanics on December 15,
1970, December sales still exceeded the sales of six other
months shown in Appendix A, namely the months of
February, March, April, May, June, and September 1970.
Even when the labor sales in months prior to November
WEBBER AMERICAN, INC.
1970 dropped in volume to almost one-half of the
November 1970 sales, no layoffs or terminations of
employees were effectuated. Indeed, the evidence is
undisputed that in the history of the Respondent, there had
never been a layoff of mechanics in the service department
for lack of work, notwithstanding that there had been
occasions when work had been slack in comparison with
the situation in November and December 1970. It is clear,
not only from company records, that work had not fallen
off in December 1970, but also from the credible and
uncontradicted testimony of the five service mechanics
involved herein, that they had ample work in process when
they were terminated on December 15, 1970. Especially in
view of the fact that four of the terminated mechanics were
paid strictly on a commission basis equal to 50 percent of
the customer labor charge, there was no economic reason to
terminate these four employees, as the Respondent would
have lost nothing by their retention.
With respect to two other reasons assigned by Olson in
justification for the December 15 terminations, namely the
cutbacks in the aerospace industry, and because Christmas
was near, I have concluded that in asserting those as
justifiable reasons, Mr. Olson was indulging in sheer
sophistry. Although there was no evidence to support the
nature and extent of the cutbacks in the aerospace industry,
it is clear from the record that the parties and the Trial
Examiner were aware from newspaper accounts over the
past year or two that the aerospace industry was in a
recession. But there was no evidence that this aerospace
recession which had prevailed for many, many months,
resulted in a decline in business in November or December
1970. As I have pointed out above, the contrary was true
and November 1970 was an outstanding month in volume
of auto repair labor sales. Attributing the December 15
terminations to the approach of Christmas is likewise an
asserted reason without factual support in the Respondent's
decision to terminate the five employees involved. Christ-
mas was as irrelevant to their terminations as the preceding
Fourth of July. The work was in the shop to be done, and in
refutation of the asserted reason of lack of work, it appears
in the record without dispute that in December 1970 and
January 1971, the Respondent was actively recruiting help,
among other means, through newspaper advertisements in
the help wanted columns of the Daily Breeze for porters, a
used-car mechanic, a tuneup mechanic, a line mechanic
and a body shop man.
The merger of the two stores' into the single American
Motors dealership at Lawndale, with Respondent's pur-
chase of South Bay American, it is clear, did not diminish
the volume of work of the Respondent. Furthermore, in the
process of the merger or shortly thereafter, a number of
employees acquired from South Bay American left, namely
Richard Bush, Junius Pete, Fred, the tuneup man, and a
lube man left. Additionally, as I repeat here, at the time the
Respondent was terminating the five men involved in this
case allegedly for "lack of work," it was advertising for and
hiring mechanics. Moreover, the hasty recall of three of the
terminated men in the first week of January 1971 refutes
the Respondent's contention that there was a lack of work
697
on December 15, 1970. The conduct of Olson in abruptly
terminating the men on December 15, his brusque
insistence that they remove their tools and return their
uniforms immediately , his failure to tell them that they
would be recalled, his insistence that Oler not talk to
another employee after his termination , and his oblique
interrogation of Bush on December 14 and Oler on
December 15 concerning the men's union activities , further
persuade me that the five terminations were motivated by
the Respondent 's determination to chill and destroy the
Union 's organizational campaign.
Conclusionary Findings
I find, on all of the attendant circumstances, that the
Respondent was aware of the union organizational
campaign being conducted by the service department
employees on the Respondent's premises. There was no
effort to conceal the union activity and it was carried on
openly with discussion, card solicitation, and card signing
in the shop. It is reasonable to infer from the nature of the
union activity and the small size of the shop 6 that the
Respondent was aware of the union organizational efforts.
This fact of company knowledge is further buttressed by
Olson's interrogation of Bush on December 14 concerning
"a list going around the shop against the Company," and
his interrogation of Oler on December 15 several times as to
"what was going on." A mass layoff at the outset of a union
organizing campaign is a not uncommon and effective
tactic to thwart it. See for example N.LR.B. v. Sun
Hardware Company, Inc., 422 F.2d 1296, 1297 (C.A. 9);
N.L.R.B. v. Tak Trak, Inc., 293 F.2d 270 (C.A. 9). In the
instant case, the Respondent terminated one-third of its
service and body shop mechanics at the height of the union
campaign and on the same day it received the Union's
December 14, 1970, letter requesting recognition and
bargaining. The timing of such conduct is highly suspect
and supports an inference of discriminatory motivation.
N.L.R.B. v. Montgomery Ward & Company, 242 F.2d 497,
502 (C.A. 2); N.L.R.B. v. Lively Service Co., 290 F.2d 205
(C.A. 10). It is well established that it is not necessary to
show that the employer knew that those he laid off had
signed union authorization cards. N.L.R.B. v. Tepper, 297
F.2d 280 (C.A. 10). I agree with the General Counsel that a
"show of force" designed to discourage union activities is
sufficient to violate Section 8(a)(3) of the Act. Majestic
Molded Products, Inc. v. N.L.R.B., 330 F.2d 603, 606 (C.A.
2); N.L.R.B. v. Piezo Manufacturing Corp., 290 F.2d 455
(C.A. 2); N.L.R.B. v. Sun Hardware Company, Inc., 422
F.2d 1296, 1297 (C.A. 9). I find that the reason advanced by
the Respondent that the layoff was for "lack of work," was
pretextual and unsupported by the facts which showed the
opposite to be the fact. Accordingly, I have concluded that
the terminations from employment of Farrington, Oler,
Quackenbush, Saunden, and Wilcox on December 15,
1970, were made by the Respondent in violation of Section
8(a)(1) and (3) of the Act.
6 See, for example, Wiese Plow Welding Co, 123 NLRB 616, and Carbet
Corp, 191 NLRB No 145.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFIOR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully terminat-
ed Robert Farrington, Gary Oler, Burt Quackenbush, Dean
Saunden, and Robert Wilcox in violation of Section 8(a)(1)
and (3) of the Act, I shall recommend that the Respondent
offer Saunden, Wilcox, and Quackenbush immediate
reinstatement to their jobs or, if those jobs no longer exist,
to substantially equivalent jobs, without prejudice to their
seniority and other rights and privileges, and make them
whole for any loss of pay each may have suffered by reason
of their terminations, from the date thereof to the date on
which each is offered reinstatement as aforesaid. As Robert
Farrington has been already reinstated to his job and Gary
Oler has already declined a valid offer of reinstatement, it
will not be necessary for the Respondent to again offer
those two individuals reinstatement. However, having
found that the Respondent's offer to Quackenbush did not
constitute a valid offer of reinstatement because it did not
afford him a reasonable time to make a decision on the
reinstatement offer, I have herein recommended that he be
offered reinstatement and backpay as above set forth. I
shall also recommend that Robert Farrington and Gary
Oler be made whole for any loss of earnings sustained from
the date of their termination to the date of the Respon-
dent's reinstatement or offer of reinstatement, as the case
may be. Such loss of earnings, if any, shall be computed in
accordance with the formula and method prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, and
shall include interest at the rate of 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Webber American, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, International Association of Machinists
and Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the tenure of
employment of Robert Farrington, Gary Oler, Burt
7 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Quackenbush, Dean Saunden, and Robert Wilcox, because
of their union activity and because they, together with other
employees, engaged in protected, concerted activities
guaranteed by Section 7 of the Act, the Respondent has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(3) and Section 8(a)(1) of the
Act.
4. By interrogating Richard Bush concerning his union
activity and sympathies as well as the union activity of
other employees, the Respondent interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act, thereby engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 7
ORDER
Webber American, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discriminating with respect to the hire and tenure of
employees because of their union activity or the exercise of
rights guaranteed by Section 7 of the Act.
(b) Coercing and restraining its employees from engaging
in union activities and the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which, I find,
will effectuate the policies of the Act:
(a) Offer Dean Saunden, Robert Wilcox and Burt
Quackenbush immediate reinstatement to their jobs, or if
those jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority and other rights and
privileges as provided in section V above entitled "The
Remedy," and make each of them, as well as Robert
Farrington and Gary Oler, whole for any loss of earnings
sustained by reason of Respondent's discrimination against
them according to the formula and method prescribed
above in section V, the remedy.
(b) Preserve until compliance with any order for
reinstatement or backpay made by the National Labor
Relations Board in this proceeding is effectuated, and make
available to the said Board or its agents, for examination
and copying, all payroll records,' social security records,
timecards, and personnel records which may be relevant to
a determination of the amount of backpay due, and to the
reinstatement and related rights provided by such order.
(c) Notify Dean Saunden, Robert Wilcox, and Burt
Quackenbush, in the event that they are now serving in the
Armed Forces of the United States, of their right to full
reinstatement,' upon application, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from
the Armed Forces.
Section 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.
WEBBER AMERICAN, INC.
(d) Post in conspicuous places at the Respondent's place
of business in Lawndaie, California, including all places
where notices to employees are customarily posted, copies
of the notice attached hereto marked "Appendix C."8
Copies of said notice to be furnished by the Regional
Director for Region 31 of the National Labor Relations
Board, shall, after being duly signed by an authorized
representative of the Respondent, be posted by it
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in such conspicuous places.
Reasonable steps shall be taken by the said Respondent to
insure that said notice is not covered, altered, or defaced by
any other material.
699
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of the receipt of a
copy of this Decision, what steps the Respondent has taken
to comply therewith.9
8 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 be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an order of the National Labor Relations Board."
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 31, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to
comply therewith."
APPENDIX A
Customer
Mechanical
Labor
Customer
Body Shop
Labor
Labor
Factory
Claims
Totals
of
Sales
1970 Sales Sales Sales Totals
January -0- -0- -0- -0-
February $2,017.43 $5,740.07 190.00 $ 7,947.50
March 1,430.90 7,335.59 455.60 9,222.09
April 1,872.72 7,933.83 304.40 10,110.95
May 3,385.96 4,918.33 1,028.10 9,332.39
June 3,434.66 4,281.37 959.80 8 , 675.83
July 2,894.38 6,594.83 1,181.20 -10,670.41
August 3 , 882.15 6,808.53 1,513 . 80 12,204.48
September 1,904.80 4,491.84 1,117 . 80 7,514.48
October 8,621.14 4,080.06 927.50 13,628.70
November 6,085.63 7,487.13 1,792 . 70 15 , 365.46
December 5,034.98 4,378.53 1,098 . 70 1.0,512.21
1971
January 6 ,047.08 5, 080.65 1,480 . 30 12,608.03
February 5,946.36 8,329.76 50.40 14,326.52
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
well as Gary Oler and Robert Farrington , whole for any
loss of earnings sustained by reason of our discrimina-
tion against them, as described in section V entitled
"The Remedy" herein.
WEBBER AMERICAN, INC.
(Employer)
WE WILL NOT discharge , lay off, terminate , or refuse
to hire or otherwise discriminate in regard to the hire
and tenure of employment or any term or condition of
employment of our employees because of their
membership in and activities on behalf of International
Association of Machinists and Aerospace Workers,
AFL-CIO , or any other labor organization of their
choice.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of their right to
self-organization , to form, join, or assist labor organiza-
tions, including the Union herein, to bargain collective-
ly through a bargaining agent chosen by our employees,
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection.
WE WILL offer to Dean Saunden , Robert Wilcox, and
Burt Quackenbush immediate reinstatement to their
jobs or, if those jobs no longer exist , to substantially
equivalent jobs, without prejudice to their seniority or
other rights and privileges , and make each of them, as
Dated By
(Representative) (Title)
WE WILL notify immediately Dean Saunden , Robert
Wilcox, and Burt Quackenbush , if presently serving in the
Armed Forces of the United States, of their right to full
reinstatement , upon application after discharge from the
Armed Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act of
1948, as amended.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board's Office, 10th
Floor, Bartlett Building, 215 West Seventh Street, Los
Angeles, California 90014 , Telephone 213-688-5850.