Winkel Motors, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1969

178 N.L.R.B. 627 (N.L.R.B. 1969)

WINKEL MOTORS, INC.
Winkel Motors , Inc. and International Association of
Machinists and Aerospace Workers, AFL-CIO,
Local Lodge No . 801; and Teamsters , Chauffeurs,
Warehousemen and Helpers, Local Union No. 533,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America. Case 20-CA-5265
September 25, 1969
DECISION AND ORDER
B,. CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On June 30, 1969, Trial Examiner Herman Marx
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel filed a brief in support of the Trial
Examiner's Decision.
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 error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case. and hereby adopts the
Trial Examiner's findings' conclusions. and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Winkel Motors, Inc.,
Reno, Nevada. its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
627
DECISION OF THE TRIAL EXAMINER
STATEMFNT OF lHb CASE
HERMAN MARX, Trial Examiner The complaint alleges
that an employer, Winkel Motors, Inc. (herein the
Respondent or Company), has violated Section 8(a)(1)
and (3) of the National Labor Relations Act' (herein the
Act) by discharging an employee, Homer Davis. because
of his membership in. or activities on behalf of, two labor
organi/ations (herein the Machinists Union and the
Teamsters Union and. collectively, the Unions).'
The Respondent has tiled an answer denying the
commission of the unfair labor practices imputed to it in
the complaint.'
Pursuant to notice duly served by the Board's General
Counsel upon the Respondent and Charging Parties, a
hearing on the issues was held before me. as duly
designated Trial Examiner, in Reno, Nevada. on May 13
and 14, 1969. The General Counsel and the Respondent
appeared through respective counsel, and all parties were
afforded a full opportunity to adduce evidence, examine
and cross-examine witnesses and submit oral argument
and briefs
Upon the entire record, from my observation of the
demeanor of the witnesses, and having read and
considered the briefs filed with me since the close of the
hearing, I make the following findings of fact'
FiNDi\GS OF FACT
1. NATURE OF TIIERFSPONDENT'S BUSINESS: JURISDICTION
OF rHE BOARD
The Company is a Nevada corporation: maintains its
principal place of business in Reno, Nevada, where it is
engaged in the business of selling new and used
automobiles and trucks at retail: and is, and has been at
all material times, an employer within the meaning of
Section 2(2) of the Act.
During the year preceding the issuance of the
complaint, the Company's income from retail sales
exceeded the sum of $500,000. In the course and conduct
of its business operations during the said year, it
purchased goods valued in excess of $50,000 from
suppliers in other states, who shipped such goods directly
to the Company in Nevada from locations outside that
state. By reason of such purchases and receipt of such
shipments, the Company is, and has been at all times
material to the issues, engaged in interstate commerce,
and operations affecting such commerce, within the
meaning of Section 2(6) and (7) of the Act Accordingly,
the National Labor Relations Board has jurisdiction over
the subject matter of this proceeding.
II THE LABOR ORGANILATIONS INVOLVED
The Respondent's exceptions , in large part , are directed to the
credibility findings made by the Trial Examiner . It is the Board's
established policy not to overrule a Trial Examiners resolutions as to
credibility unless, as is not the case here , a clear preponderance of all the
relevant evidence convinces us that they are incorrect Standard Drv Wall
Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 ( C A 3) Nor do we find
merit in the Respondent ' s contention that because the Trial Examiner
uniformly credited the General Counsel's witnesses and generally
discredited the Respondent 's witnesses , his credibility resolutions are
erroneous or attended by bias or prejudice N L R B v Pittsburgh
Steamship Co . 337 U S 656 Accordingly, we find no basis for disturbing
the Trial Examiner 's credibility findings in this case
Each of the Unions admits employees to membership:
'29USC 151, et seq
'The full name of the Machinists Union is International Association of
Machinists and Aerospace Workers, AFL-CIO, Local Lodge No 801, and
that of the Teamsters Union is Teamsters. Chauffeurs, Warehousemen and
Helpers, Local Union No 533, International Brotherhood of teamsters,
Chauffeurs , Warehousemen and Helpers of America
'The complaint was issued on February 28, 1969, and is based upon a
charge filed by the Unions on October 25, 1968, and an amendment
thereof filed on June 6, 1969 Copies of the charge, the amendment
thereof, and the complaint have been duly served upon the Respondent
178 NLRBNo.98
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exists'lor the purpose of collective bargaining on behalf of
employees with employers concerning terms and
conditions of employment ; and is , and has been at all
material times, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company employs approximately 30 persons,
excluding sales personnel, and its facilities include a
service department for the repair and maintenance of new
and used cars. Department personnel include general and
specialized mechanics. These work under the supervision
of a departmental manager who is vested with authority to
hire and discharge employees, and is subject, in turn, to
supervision by the Company's corporate secretary and
treasurer, Robert Winkel.
Homer Davis entered the Company's employ as a
"general mechanic" on January 19, 1968, and worked in
that capacity until his employment was terminated on
October 21, 1968.° His duties consisted, in the main, of
the repair and maintenance of automobile engines, rear
end assemblies, and transmissions. He was paid by the job
on a "flat rate" or "piece work" basis, but was
guaranteed payment for a minimum of 31 hours each
workweek at a prescribed hourly rate. The service
department manager throughout his employment was
Elvin L. Swim, who is no longer in the Company's
employ.'
In July 1968,6 Davis began to advocate union
representation in individual and group discussions with
employees of the Company and other Reno automobile
dealers, and discussed the procedure for organizing them
with an officer of the Machinists Union, who gave Davis
some "authorization cards" which, when executed, signify
the signatories' support of union representation. Davis
gave some of the cards to others in the Company's
employ for solicitation of signatures of employees of the
Company and other automobile dealers, with the result
that about 14 cards were executed. Davis turned them
over to the Machinists Union.
He met on subsequent occasions in July and August
with various functionaries of the organization and was
instrumental in arranging a meeting toward the end of the
latter month, attended by representatives of the
Machinists Union, an official of the Teamsters Union,
and most of the mechanics in the employ of the Company
and another Reno automobile dealer. The subject was
organization of automobile mechanics in the Reno area.
The meeting was followed by another on September 11,
and thereafter by biweekly meetings , attended by
representatives of the Unions and mechanics employed by
automobile dealers in the area, and centering on
organization of such employees. Davis attended each of
the meetings, and with another of the Company's
mechanics, Jack Stafford, volunteered at the meeting of
September 11 to serve on a two-man committee to
disseminate organizational information among the
'Davis had a prior employment with the Company , to which later
reference will be made.
'By force of his authority to direct employees , and to hire and discharge
them , Swim was a supervisor within the meaning of Sec 2(11) of the Act
at all material times during his managerial tenure . Needless to say, Robert
Winkel has also had that statutory status at all times material here
'Unless otherwise stated , all dates material here occurrred in 1968
employees in their shop, and functioned in that capacity
thereafter. Similar committees served the same purpose in
the other automobile shops in the area.
B. The Discharge
There was no work available for Davis on the afternoon
of Friday, October 18, and shortly after lunch, he asked
Swim for permission to take the afternoon off. Swim gave
his consent, telling Davis during the course of discussion
that he had an assignment for Davis for the following
Monday to overhaul a transmission. Davis left shortly
after 1 p.m., as the Company's records (R. Exh 2) attest.
He was regularly paid each Friday for the workweek
ending the day before, but he did not draw his paycheck
before he left because of his early departure.
Either that same day or the next-more likely the latter,
according to Robert Winkel - a letter from the Unions,
dated October 17, 1968, addressed to "Chet" (Chester)
Winkel, Robert's brother and president of the Company,
was delivered to its premises and came to Robert Winkel's
attention.' The letter, in substance, stated that the Unions
represented a majority of the Company's employees in
specified categories; offered to prove the majority status;
and requested a meeting with Chester Winkel for
"contract negotiations" at a specified time on Tuesday,
Ocotber 22, or, if not convenient to him, on another date
to be suggested by him.
Davis reported for work shortly before his regularly
scheduled starting time on Monday, October 21, but as he
was getting ready for duty, Swim summoned him to his
office, and stated that he would "have to let (Davis) go"
because he had "to cut down in personnel." Davis
remonstrated that he was senior to some other employees,
but Swim replied that he had "been all through this
Saturday and this is the way I have to do it." Davis was
then given his terminal pay in the form of two checks, one
for the workweek that had ended on the preceding
Thursday, and the other for his partial workday on
Friday; and he left the premises.' With his termination,
the Company's force of mechanics was reduced to 12.'
'Mail addressed to the Company at its business premises is usually
delivered to its post office box and picked up there each weekday and
Saturday by Chester Winkel. Stating that he was "not altogether sure"
about the matter, Robert Winkel intimated that Chester picked up the
Union's letter at the post office and brought it to the Company's office on
Saturday , October 19. Whether that was done on that or the previous day
does not materially affect the ultimate results in this proceeding.
'I do not believe testimony by Swim that he informed Davis of his layoff
"just before quitting time (4:30 p.m ) on Friday , October 18 ," or, as Swim
put it elsewhere, at about 4:15 or 4 30 on "Friday evening". For one thing,
testimony by Davis to the effect that he was given the afternoon off by
Swim on Friday and left shortly after I p.m. is corroborated by the
Respondent's time records (R. Exh . 2) which show that Davis left at 1 10
p m For another matter, Swim admitted at one point that he has no "real
independent recollection " that he laid off Davis on "Friday evening",
testifying that "it would probably have been on a Friday evening" because
"we generally terminate people" then Moreover , the Respondent does not,
in terms at least, contradict Davis' testimony that he was given the two
terminal paychecks on Monday . The findings as to Davis' conversations
with Swim on Friday and Monday are based on Davis' testimony , which I
credit
'According to an exhibit offered by the Respondent (R. Exh. 4), its force
of mechanics was further reduced and stood at 11 in November and
December 1968, but an attachment to the exhibit indicates that 12
mechanics of various classifications were in the Respondent 's employ
throughout both months, and that a thirteenth (La Pointe ) was employed
from November 29 to December 6 In any case , even if one assumes that
the Respondent decided on an economic force reduction in October, and
that the force fell to 1 I some time after Davis' termination , the question of
the motivation for the choice of Davis, rather than another , still remains.
WVINKEL MOTORS, INC.
The Company has not reemployed him, although,
according to Swim, he told Davis at the time of the layoff
notification that "if business picks up,'' it would reemploy
him.
The General Counsel, maintaining that the management
was aware that Davis was a union activist, and stressing
the timing of the purported layoff in relation to the
Company's receipt of the Union's claim of representation
and bargaining request, asserts that Davis was discharged
for union activity.
The Respondent, on the other hand, asserting in its
brief that there is no evidence that the management was
"aware" of any union activity by Davis, and disclaiming
any antiunion motivation for his termination, contends
that he was laid off because of a seasonal decline in
service department business, and that he was selected for
layoff by Swim because the decline coincided with the
introduction of the new car models for 1969, and most of
the mechanical work required was of a "predelivery" or
otherwise "light" nature on new cars, and not, as Swim
put it, Davis' "cup of tea." since he was a "a heavy duty .
and medium man": and because of "problems" with
Davis (to which reference will be made later.)
There is no dispute that the Company's income from its
service department underwent a seasonal decline in the fall
of 1968 and the succeeding winter months,'° and that
Davis' termination coincided, with the start of the new car
season, but, even if one assumes that the Respondent
decided on a force reduction of one mechanic in October
for economic reasons, it is quite another matter to accept
the Respondent's proffered reasons for choosing Davis.
As a preliminary matter, it may be useful to clarify the
General Counsel's burden. If the Respondent's claim that
the record does not establish that it was "aware" of
Davis' union activity means that the General Counsel
must prove that the Company had first hand knowledge of
such activity, it misconceives the burden. It is enough if he
proves that the Respondent believed that Davis had
engaged in union or other activity protected by Section 7
of the Act, and discriminated against him because of such
belief." Moreover, if its motivation was unlawful, it
matters not whether the Respondent discharged him, or,
having need for a reduction in lorce for economic reasons,
served its unlawful motivation by designating him for
layoff to fill the need. For reasons to be stated later, I am
convinced that the purported layoff was a discharge, and
shall thus refer to Davis' termination below.
There are ample indications in the record that the
Company had information prior to Davis' discharge that
he had engaged in organizational activity. Both Swim and
Robert Winkel admittedly became aware as earl- as the
summer of 1968 that efforts were under way to organize
the Company's service department employees. Its "body
shop manager," Lavern Harper, who, although supervising
only four employees, and subordinate to Swim, had
authority to hire and discharge employees," repeatedly
discussed unionization with Davis; and, according to his
own testimony, "had heard rumors" that Davis had been
"signing people up for the "union." Moreover, as Davis
testified, without contradiction, Harper asked him in July
whether he would become a union business agent "after
we got the union", and Davis replied that that was
'116,252 in August; $13,065 in September; $12,344 m October, $11,261
in November , $ 10,220 in January 1969 , and $9,387 in February 1969.
"See, for example , Continental Nut Company , 91 NLRB 1058, 1100,
Ridge Tool Company. 102 NLRB 512
629
"likely."" The very tenor of Harper's question indicates
that he regarded Davis as an active proponent of
unionization of the service department employees.
Harper. to be sure, was a minor supervisor (he is now
service department manager, having succeeded Swim in
that post), but managerial knowledge or belief that Davis
was a union activist did not stop with him. Swim was
evasive about the matter, testifying. in equivocal vein, that
he did "not directly" know the identity of those with a
major role in organizing the Company's shop; and that he
did "not definitely" know that Davis "was a prime
organizer or . . a member of the (shop) organizing
committee." Moreover, I think it implausible that Swim,
as he testified, "had heard" that Davis had been
`'organizing or trying to organize" employees of another
Reno automobile dealer (Scott Motors), but, as he claims,
had never heard "a rumor" that Davis had tried to do the
same in the Company's service department. More to the
point. this disclaimer is directly at odds with testimony by
Harper that he told Swim that he "had heard (that Davis)
was organizing union in the [Company's] shop."
Swim, as previously indicated, evinced a dispostion to
evade or fence with pertinent inquiry into his knowledge
of Davis' union activity, but in addition, as will presently
appear, there is much amiss with his testimony on other
material matters, notably his proffered justification for
Davis' termination. I do not credit Swim's claim to the
effect that he had no information that Davis had engaged
in organizational activity among the Company's service
shop employees, but find, instead, that he knew or
believed prior to Davis' termination that Davis had
engaged in such activity. In the light of that conclusion,
and of substantial evidence, to be described later, pointing
to an unlawful motivation for the discharge, I am unable
to accord any weight to self-serving denials by Chester
and Robert Winkel that they had any knowledge that
Davis had engaged in any effort to organize the
employees
The timing of the dismissal does much to illuminate its
motivation. It is an important fact that the layoff
notification came on Davis' very next workday after the
Company's receipt of the Unions' claim of representation
and bargaining request; and that the Company fails to
explain why Davis was informed of the purported layoff
on Monday morning instead of the preceding Friday,
which, according to Swim himself, is the day "when we
generally terminate people." Instead of a rational
explanation, what one finds is an untenable claim by
Swim that he laid off Davis about 4.15 or 4:30 p in., "just
before quitting time," on "Friday evening"-- a contention
which is refuted by one of the Respondent's own exhibits
(R. Exh. 2), based on its time records. which show that
Davis "left early," at 1 10 p in.. on Friday; and testimony
by Robert Winkel that he is "not sure" whether Davis
was discharged on "Friday afternoon or . . . Monday
morning " This professed uncertainty has the earmarks of
equivocation in view of evidence that Swim received
instructions for the layoff on Saturday; and of the fact
that Winkel himself directed the preparation of the
exhibit, which was offered to prove that Davis was absent,
tardy or "left early" on specified dates.
Moreover, Chester Winkel, although a witness, tells us
little about the layoff decision beyond a claim that the
"As body shop manager, Harper was a supervisor within the meaning of
Sec 2(11) of the Act
"Harper does not deny that he put the question to Davis, stating merely
that he does not "recall" whether he did so
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management decided on a force reduction in October, and
that Swim was the'one who chose Davis; and Robert
Winkel's testimony is markedly deficient on the subject of
the date of the decision and his role in it. At one point,
Robert testified that at a meeting attended by himself,
Chester, Swim and the "parts manager" on October 15 or
16, "it was just on my recommendation" that Davis was
chosen for layoff, and that he "assumed that the service
manager (Swim) concurred in that because we did not get
in an argument ." This would indicate that Swim's role
was mere passive acceptance of Robert's
"recommendation", but it is not quite in harmony with
later testimony by Winkel that it was "basically the
service manager" who made the decision after
consultation with the Winkel brothers, nor with Swim's
claim that it was he who made it, nor with Chester's
testimony that Swim made it; and is manifestly at odds
with the undisputed evidence that when Davis protested
his selection for a force reduction to Swim on Monday
because he was senior to other employees, Swim replied
that he had "been all through this Saturday and this is the
way I have to do this", thus clearly indicating that he was
acting upon instructions given to him on Saturday,
October 19, by one or the other, or both, of his superiors,
the Winkel brothers.
To cap the matter, Swim told Davis before the latter's
early departure on Friday that a transmission overhaul job
was expected on Monday, and that Davis was to do the
work, and it is clear from that and Swim's remarks on
Monday that the decision to terminate Davis was made on
the previous Saturday.
There is good reason to conclude, moreover, that it
came after the arrival of the Union's letter. Robert
Winkel was noticeably vague and tentative on the question
of the date when the letter came to his attention. Asked
when he first saw it, he testified, "Well, I am not
altogether sure whether l personally - and yet it's only
assuming -in my mind that it was Saturday morning
instead of Friday morning." Then, he gave testimony,
much of it volunteered, that he and his brother "have a
specific routine," that his brother "doesn't work
Saturday", and that "I can recall him somewhat being in
slippers bringing in the mail. He stops off with the mail
and well- that there isn't anything that we can do about it
today" (that is, Saturday, according to the sense of the
testimony). Chester Winkel, it may be noted, did not
touch on the subject in his testimony although it is he, so
Robert Winkel asserts, who "daily" picks up the
Company's mail at the post office. And I formed the
impression from Robert Winkel's demeanor and the text
of his testimony that he was equivocating on the subject,
as on much else, including the timing of the decision to
terminate Davis, his role in it, and the date of the
termination. In sum , taking into account the Respondent's
failure to explain the unusual timing of the layoff
notification, the absence of any dependable testimony
from it as to the date of receipt of the bargaining demand-
a matter peculiarly within its knowledge, the lack of
candor by Swim and Robert Winkel as to the date and
origin of the discharge decision, and of the date of the
discharge itself, and Swim's intimation on Monday
morning to the effect that he had been instructed by
superior authority in the management on Saturday to
effect the layoff, I am convinced, and find, that the
decision was made by the management on Saturday, at
some point after the receipt of the Unions' bargaining
demand either on that day or the day before.
The unexplained timing of the layoff notification in
relation to the receipt of the letter, against the background
of Davis' organizational activities, points persuasively to a
causal link between the letter and Davis' termination, and
that conclusion becomes inescapable upon consideration of
the Respondent's proffered justification for Davis'
dismissal.
The Respondent did not follow seniority of service in
choosing Davis for the alleged economic force reduction,
as is evident from the fact that Davis was senior to at
least one general mechanic, Cockerham,'° and significantly
enough, the alleged justification for choosing Davis rather
than Cockerham comes apart upon examination.
According to Robert Winkel at one point, Davis was
chosen "basically because of .. . (his) absences." But if
Swim is to be believed, it was he who made the choice,
and the reasons he gives, as a witness for the Respondent,
provide an instructive guide to an assessment both of his
credibility and that of Robert Winkel.
Davis had worked for the Company in a previous
period, and according to both Swim and Robert Winkel,
the latter, shortly after Davis reentered the Company's
employ in January 1968, told Swim that Davis had had a
"problem" of "alcoholism." Swim testified, too, that both
Winkel brothers often complained to him that he did not
keep his work area clean, that he frequently voiced similar
complaints to Davis, and that the latter "was off quite a
bit," and frequently tardy.
Following his references to these "problems," Swim
was asked on direct examination to give his reasons for
choosing Davis for force reduction, and, in reply, he said
nothing about such "problems," stating, in substance, that
Davis was not qualified to do the work primarily required
in the shop with the advent of the new car season It was
only after he was asked a leading and suggestive question
whether the "problems that you had encountered with Mr.
Davis" entered into his choice that he gave any indication
that they were factors, answering, "Somewhat, yes,"
without giving any elaboration, or removing the possibility
of an impression, resulting from the prior references to
alcoholism, that it was among the "problems" that led to
the layoff choice.
If Swim is telling the truth, it is evident that his
primary reason for choosing Davis was the type of work
required for the new car season, and this is a substantial
departure from Robert Winkel's claim that the basic
reason was Davis' absenteeism. But more to the issue, I
do not believe the reasons given by either. What there is
on the subject of alcoholism is that Winkel allegedly told
Swim at the inception of Davis' employment, some 10
months before his termination, that Davis had had a
drinking "problem," and there is not a scintilla of
evidence that Davis took even so much as one alcoholic
drink during the period of his employment (or for that
matter prior thereto, apart from the testimony of Winkel
and Swim that the former told the latter many months
before the discharge that Davis had had such a
"problem"). The Respondent knows best why it
introduced the references to alcoholism into the record,
and it will suffice for present purposes to say that the subject
of! alcoholism had no connection with Davis' discharge.
"Davis was also senior to four other mechanics of varying
classifications , identified (R Exh 4) as Lilly, Tankersley, Walton
(classified as a general mechanic and for "light service"), and Griswold I
see no need to canvass the types of work they respectively performed, for
the end result on the discrimination issue is the same whether or not Davis
was capable of performing such work
WINKEL MOTORS , INC. 631
The charge of absenteeism, which the Respondent
divides into three categories (early departures, tardiness,
and "missed" days) has earmarks of exaggeration and
afterthought. The management never voiced any
complaint to Davis that he was undependable or
excessively absent;' S and so far as appears. the claim is
given expression for the first time in this proceeding. This
of itself renders the claim suspect, but any doubt about
the matter is dissipated upon examination of details of the
contention
Thus, although Davis concededly "left early" some 36
times in the 10 months of his employment, it is a fact that
he did so each time with Swim's permission, as the latter
admitted. There is no evidence that Davis had any work
to perform on any of these occasions, and especially in the
absence of such evidence, it escapes one how one can fault
Davis, who was compensated on a piece work basis, for
leaving early with his supervisor's permission. The brittle
and feeble quality of the claim is perhaps best exemplified
by the fact that it includes Davis' early departure on
Friday, October 18. with Swim's consent, because he had
no work to do that afternoon
As for the tardiness claim, although it is true that
Davis' timecards show that he punched in after 8 a.m., the
usual reporting time, some 30 times, the contention loses
its force in the light of other facts The majority of the
late punches were only 10 mintes past 8 a.m.. but passing
that, these do not necessarily reflect late arrivals.
Although mechanics are paid by the job, they maintain a
record of the time they spend on it on a job card
(presumably, for such purposes as customer charges), and,
as Davis testified, without dispute, they customarily punch
their timecards and their job cards together at the time of
assignment of a project at or after their arrival in the
morning, with the result that if a mechanic has no job
pending at the time of his arrival and must wait for
assignment. as is the case on occasion, his timecard will
reflect a late starting time, notwithstanding a punctual
earlier arrival. In short, the evidence does not establish
that Davis was excessively tardy, and, particularly bearing
in mind that the management never mentioned the matter
to him during his employment, I am persuaded that it has
seized upon the record of late punches, after the fact of
Davis' termination, to give color to its claim of lawful
justification
The claim that an excessive number of "missed" days
was a factor in Davis termination is similarly
unpersuasive The Respondent asserts that there were 37
of these, but 5 are not established, the Respondent resting
its position regarding the 5' on its inability to locate
timecards for Davis for such days among its records. (It
does not appear that it endeavored to establish the
relevant facts from any job records.) The claim that Davis
was absent on the 5 days amounts to a guess. Of the
remaining 32 days, Davis was absent because of a
fractured arm for a period of 25 days, ending about 3
months before his termination, and of the 7 days that
remain, only 3 occurred in the 3-month period.
That the Respondent should journey a substantial
distance into Davis' employment history to make a point
of the 25 days he missed because of his misfortune does
nothing for the image of legality it would give itself.
"Davis' testimony that no such complaint was made to him is, to be
sure, self-serving , but it is uncontradicted , and what is more, is given
corroborative weight by a written commendation from Swim (G C Exh
6), to which added reference will be made later
indeed, the journey, like the evidence of the early
departures and alleged tardiness, is nothing but an
afterthought makeweight for the Respondent's claim that
Davis was laid off for lawful cause. That view of the
matter rests not only on the indicia that Swim and Robert
Winkel lacked candor on significant subjects, including the
important matter of the date of the discharge; the
flimsiness of the claim that early departures and tardiness
were factors in Davis' termination, and the fact that the
management never complained to Davis about his
attendance record, but upon the hard evidence of a letter
of commendation given Davis by Swim after the latter left
the Company's employ as service manager . The letter,
dated December 12, 1968, and addressed "To Whom It
May Concern," states that Swim had "found his (Davis')
workmanship good and above average"; that his
"dependability and cooperation was excellent" ; that Swim
would "highly recommend him (Davis) as an excellent
man in his field", and that should Swim become a service
manager again he "would readily hire" Davis. Swim now
claims that he gave Davis the letter "to help the man"
and would "rehire him with reservations," but this, in my
judgment, is but another of Swim's afterthoughts, and in
view of the lack of candor which marks so much of his
testimony, 1 am unable to accord his qualification any
weight.
The allegation of uncleanliness rests solely on subjective
claims of two interested witnesses, Swim and Robert
Winkel, and what there is in the record of an objective
nature pertinent to the subject leads me to conclude that
the claim is afterthought puff and exaggeration aimed,
like the rest of the alleged "problems" with Davis, at
cloaking his discharge with an aura of legality Swim's
letter of commendation, particularly his statement that
Davis' "dependability and cooperation was excellent",
runs directly counter to his portrayal of Davis as
maintaining a dirty work area in disregard of repeated
admonitions to keep it clean, and of itself goes far to
preclude reliance on his claim that the alleged
uncleanliness played a role in the decision to terminate
Davis. In addition, although Robert Winkel now professes
dissatisfaction with the allegedly unclean condition of
Davis' work area (and work clothes, a matter not
mentioned by Swim in his testimony), he never said
anything about the subject to Davis on any of the daily
occasions when he walked through the service shop in the
entire period of Davis' employment. He claims now that
he "complained" to Swim, relying on him to look after
the matter. but this appears to me to be of a piece with
the self-exonerating claims of both Chester and Robert
Winkel that they left the choice of the nominee for layoff'
to Swim. I place no credence in the claim that
uncleanliness of Davis' work area was a consideration in
his termination
Nor is there any objective evidence to support Swim's
generalizations to the effect that "prcdelivery" and other
"light" work on new cars was not Davis' "cup of tea,"
and that Cockerham was "more of a qualified mechanic"
than Davis in such areas as automobile "tune up" and
air-conditioning work, and in servicing carburetors. The
letter of commendation and the lack of candor that runs
through major aspects of Swim's testimony strips these
generalizations of any value they might otherwise have,
and I am unable to rely on them in assessing the motive
for Davis' termination.
The real motivation is to be found in the evidence of
Davis' activity in organving the service shop employees,
and in the timing of his termination in relation to the
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt of the Union's letter. Against the background of
Davis' organizational activity, and of the Company's
knowledge or belief that he had engaged in efforts to
organize its service department employees, the fact that
his termination followed, without any prior warning to
him, on his very next workday after the Company
received the Unions' letter, and that the day chosen for
the purported layoff was contrary to the management's
customary practice, warrants an inference that the letter
triggered the decision to terminate Davis, in the absence
of a credible explanation by the Respondent of its course.
Such an explanation is lacking, granting the existence
of an economic justification for a force reduction of one
mechanic in October. Swim's claim that he laid off Davis
on Friday, October 18, is untrue, and Robert Winkel
equivocated about the day. The unnatural choice of the
following Monday is not explained. The alleged
"problems" with Davis are afterthought props for the
Respondent's claim of lawful motivation.16 And the very
fact that the Respondent has resorted to them bolsters a
conclusion that its motive for the termination was
unlawful." It is clear, moreover, that Davis was
discharged rather than temporarily laid off. Swim gave
Davis no reason for disregarding his seniority over other
mechanics retained, brushing aside his protest with the
comment that he had "been all through this Saturday and
this is the way I have to do it." Significantly, although
Swim now claims that Davis was "subject to rehiring if
business picks up," toward the end of November, the
Respondent hired a "general mechanic" named La Pointe
who, like Davis, did "heavy duty" work.1e
In sum, the record, taken as a whole, leads me to
conclude and I find, that the Company linked Davis'
organizational activity among its employees to the
Unions' claim of representation and bargaining request
contained in their letter of October 17, 1968, held him
accountable for the letter, and discharged him because of
it; and that by thus discharging him, the Company
violated Section 8(a)(3) of the Act, and interfered with,
restrained and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act, thereby
violating Section 8(a)(1) of the statute."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described 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 the Company has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend below that the Company cease
and desist from the unfair labor practices found, and take
certain affirmative actions designed to effectuate the
policies of the Act.
In view of the nature of the unfair labor practices
committed, I shall recommend an order below which will
in effect require the Company to refrain in the future
from abridging any of the rights guaranteed employees by
said Section 7.20
Having found that the Company discriminatorily
discharged Homer Davis in violation of Section 8(a)(1)
and (3) of the Act, I shall recommend that the Company
offer him immediate and full reinstatement to his former,
or a substantially equivalent, position," without prejudice
to his seniority and other rights and privileges, and make
him whole for any loss of pay he may have suffered by
reason of the said discharge by payment to him of a sum
of money equal to the amount of wages he would have
earned, but for his discharge, for the period between the
date of his discharge, as found above, and the date on
which he is offered reinstatement, together with interest
on said amount at the rate of 6 percent per annum; and
that the loss of pay and interest thereon be computed in
accordance with the formula and method prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289
and Isis Plumbing & Heating Co., 130 NLRB 716, to
which the parties to this proceeding are expressly referred.
CONCLUSIONS OF LAW
"The Respondent adduced evidence that in his written application for his
second employment by the Company in January 1968, Davis failed to list
his first employment in a space reserved for the listing of previous
employers The omission amounted to a misrepresentation , although it
may be noted that Robert Winkel was admittedly aware of the prior
employment at the inception of the second, and communicated the
information to Swim . In any case, the misstatement some 10 months
before the discharge obviously had no connection with it. I have taken the
misrepresentation into account in evaluating Davis' credibility , noting, also,
in that regard , that the fact that Davis' application contained a
misstatement does not endow Swim , the Winkel brothers, and the
justification offered for Davis' termination with credibility.
"Shattuck Denn Mining Co. v. N L R.B., 362 F.2d 466, 469 (C.A. 9),
and cases cited.
"Without identifying him by name , Stafford testified that a "heavy
duty" mechanic was hired about the beginning of December and worked
for about a week . The mechanic, obviously, was La Pointe.
"The findings of violation are in no way based on evidence adduced by
the General Counsel to the effect that during the organizational campaign
the management expressed views purporting to refute "promises" made by
the Unions to employees , and that the employees would not benefit from
union organization Similarly, I base no findings on evidence that the
Company, during the period, posted a bulletin dealing with solicitation of
employees (or distribution of literature ) in the service area The record
does not precisely establish the contents of the bulletin , and, in any case,
its legality is not in issue.
Upon the basis of the foregoing finding of fact, and
upon the entire record in this proceeding, I make the
following conclusions of law:
1. Winkel Motors, Inc. is, and has been at all material
times, an employer within the meaning of Section 2(2) of
the Act.
2. Each of the Unions is, , and has been at all material
times, a labor organization- within the meaning of Section
2(5) of the Act.
3. By discriminatorily discharging Homer Davis, as
found above, the Company has engaged, and is engaging,
in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
""We believe that a discriminatory discharge of an employee because of
his union affiliations goes to the very heart of the Act." N L R.B v
Entwistle Manufacturing Co, 120 F 2d 532, 536 (C A 4) See also May
Department Stores v. N L.R B , 326 U S 376; Bethlehem Steel Company
v N L.R B. 120 F.2d 641 (C.A D.C )
"In accordance with the Board's past interpretation, the expression
"former, or a substantially equivalent , position" is intended to mean
"former position wherever possible, but if such position is no longer in
existence, then to a substantially equivalent position ." Chase National
Bank of the City of New York, 65 NLRB 827.
WINKEL MOTORS, INC.
4. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, the Company has
engaged, and is engaging, in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, and
conclusions of law, and upon the entire record in this
proceeding, I recommend that Winkel Motors, inc., its
officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Discouraging membership of any of its employees in
either International Association of Machinists and
Aerospace Workers, AFL-CIO. Local Lodge No. 801 or
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 533, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by discharging
any employee, or in any other manner discriminating
against any employee with respect to his hire, tenure of
employment or any term or condition of employment.
(b) Or in any other manner interfering with, restraining,
or coercing employees in the exercise of any rights
guaranteed them by Section 7 of the said Act.
2. Take the following affirmative actions which, I
find, will effectuate the policies of the Act:
(a) Offer Homer Davis immediate and full
reinstatement to his former, or a substantially equivalent,
position, without prejudice to his seniority and other rights
and privileges, as provided in section V. above, entitled
"The Remedy," and make him whole according to the
formula and method prescribed in said section V
(b) Preserve until compliance with any offer of
reinstatement or baekpay made by the National Labor
Relations Board in this proceeding is effectuated, and
make available to the said Board and its agents, upon
request, 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 Homer Davis if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act. as amended, after discharge from the
Armed Forces.
(d) Post at the Company's place of business in Reno,
Nevada, including all places where notices to employees
are customarily posted, copies of the attached notice
marked "Appendix "Z= Copies of the said notice. to be
furnished by the Regional Director for Region 20 of the
National Labor Relations Board, shall, after being duly
signed by an authorized representative of the Company,
be posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
such conspicuous places Reasonable steps shall be taken
by the said Company to insure that said notices are not
covered, altered, or defaced by any other material.
"In the event that this Recommended Order is adopted by the National
Labor Relations Board, the words "a Decision and Order" shall be
substituted for the words "the Recommended Order of a Trial Examiner"
633
(e) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps the
Respondent has taken to comply therewith.13
in the notice In the additional event that the Board 's order is enforced by
a decree of a Lnited States Court of Appeals, "a Decree of the United
States Court of Appeals Enforcing an Order' shall_be substituted for the
words "a Decision and Order'
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the said Regional
Director, in writing, within 10 days from the date of this Order , what steps
the Respondent has taken to comply therewith "
APPENDIX
NOTICE ro ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, and ordered us to post this
notice.
The Act gives employees the following rights
To engage in self-organization,
To form, join or assist any union,
To bargain collectively through representatives of
their own choice,
To engage in activities together for the purpose of
collective bargaining or other mutual aid or
protection:
To refrain from the exercise of any or all such
rights.
WE WILL Nor discharge, lay off, or otherwise
withhold any work from any employee, because any
employee has exercised any of such rights.
WE WILL NOT in any other manner interfere with any
employees' exercise of any of such rights
The National Labor Relations Board has found that we
discriminated against Homer Davis by discharging him,
in violation of the Act, because he engaged in union
activity, and has ordered us to offer him full
reinstatement to his former, or a substantially
equivalent job, and to reimburse him for any loss of pay
he may have suffered because of such discrimination.
WE WILL offer Homer Davis such reinstatement, and
reimburse him for his loss of pay, together with interest
thereon, in accordance with the Board's order.
WE WILL notify Homer Davis if presently serving in
the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
Dated By
WINKEL MOTORS, INC.
(Employer)
(Represtntative) (Title)
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.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice
or compliance with its provisions, they may communicate Building,
450 Golden Gale Avenue, Box 36047, San
directly with the Board's Regional Office, 13050 Federal
Francisco, California 94102, Telephone 556-0335.