Billings Chrysler-Plymouth, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1980

251 N.L.R.B. 706 (N.L.R.B. 1980)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Billings Chrysler-Plymouth, Inc. and District 29, In-
ternational Association of Machinists and Aero-
space Workers, AFL-CIO. Case 19-CA-11466
August 26, 1980
DECISION AND ORDER
BY MIEMBI RS JENKINS, PEN I O, ANI)
TRUISI)DAI
On May 14, 1980, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding.' Thereafter, Respondent filed
exceptions and a supporting brief,2 and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Billings Chrysler-Plymouth Inc., Billings, Montana,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph (f):
"(f) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
' ()O May 27. 1980. he Admillstrati e Law Judge issued an Errala
2 Responident's [otlion for rhearing is denied as it is lacking in meril
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Hoard's established police not to
overrule all administraltie law judge', resolulions with respect to credi-
hility unless the clear preponderanlce of all of the relevant evidence oln-
ince, us hal the resolulionls are incorrect. Slundurd Dr Wall Products.
Ii.. 91 NLR 544 (19510). enfd. 1X F 2d 362 (3d Cir. 1951) We have
carefull examilned the record and finld no basis for reversing his finding
I par. I) of his recommended Order. the Administrative I aw
Judge used he broad cease-anld-desist-language. "ll ally other maller "
Hiotcser. he Board's plicy is that such all order is warranited onIly
wherc a reponldent is show n to have a proclisity Io violate the Act, or
ha% engaged ill uch egregious or idespread nlisconduct as to demon-
,trale ; getlerill tliregard for the eirtplosees' statutory rights III ntlrolt1
I'oA. 11ai. 242 NlRB 1357 (1979) We find that lithe broad illtunlcse
order issued aigaillt% RCspoldeCIl i i niot sl arralled i thlis ( c;, aild sc
shall liodif l the recoamenitded ()tdcr and noltice accordiigly
MhtilhCr Jcllkills v:, ould award illlcsi (oil the hackpay du(u ill ccorid-
allco .a.ith 11[, disetill ii Olrpia .,ttdnaal/ (orpiorulioln. 250 N R No I I
I t))
251 NLRB No. 89
ercise of the rights guaranteed under Section 7 of
the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer to Carl White immediate and full rein-
statement to his former position or, if such position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any loss of pay or other benefits suf-
fered by reason of the discrimination against him in
the manner described above in the section entitled
'The Remedy."'
3. Insert the following as paragraph 2(b), reletter
the subsequent paragraph accordingly, and insert
new paragraph 2(d):
"(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
"(d) Notify the Regional Director for Region 19,
in writing, within 20 days from the date of this
Order what steps Respondent has taken to comply
herewith."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYE ES
POSTI:D BY ORDER OF IHI
L
NA IONAL LABOR R-I.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has 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 repre-
sentatives 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 activities.
Wli wii I Nor discharge employees because
of their union activity or because they filed
charges against us with the National Labor
Relations Board.
BlIlL IN(S CK\RYSI.IR-I'I.YMOTItIIt. INC' 71)7
WI,: VII NOT solicit the presentation of
grievances from you or suggest that we prefer
to sign a contract directly with the employees,
rather than with the Union, in order to dis-
courage you fronl designating District 29, In-
ternational Association of Machinists and
Aerospace Workers, AFL-CIO, or any other
labor organization, as your bargaining repre-
sentative.
WI wVllt NOT coercively interrogate em-
ployees regarding the filing of unfair labor
practice charges.
Wl wt. N threaten employees with ad-
verse treatment because of their union activity.
Wti Wtllt NO'I in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the aforementioned rights
guaranteed them by Section 7 of the Act.
Wu; wit] offer Carl White immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights or privileges previous-
ly enjoyed, and make him whole for any loss
of pay or other benefits suffered by reason of
the discrimination against him by paying him a
sum equal to what he would have earned, less
any net interim earnings, plus interest.
Bllti INGS CHRYSL.ER-PL.YMOU H, INC.
DECISION
S I A Il IN I F01: IH CASE
GRAI1 I) A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Billings, Montana, on December
4, 5. and 6, 1979.' The original charge was filed on June
13, and an amended charge was filed on June 22 by Dis-
Irict 29, International Association of Machinists and
Aerospace Workers, AFL-CIO (herein called the
Union). On July, 31, the Regional Director for Region 19
of the National Labor Relations Board (herein called the
Board) issued a complaint and notice of hearing alleging
a violation by Billings Chrysler-Plymouth, Inc. (herein
called Respondent) of Section 8(a)(I) and (3) of the Na-
tional Labor Relations Act, as amended (herein called
the Act). A second amended charge was filed by the
Union on October 31, and on November 19 the afore-
mentioned Regional Director issued an amendment to
complaint which amended the initial complaint by in-
cluding an 8(a)(4) allegation. Thereafter, on November
29, Respondent was notified of the General Counsel's in-
tention to further amend the complaint at the hearing by
including additional 8(a)(l) violations 2 Respondent's an-
swers to the original complaint aid amendments to the
' All dItiC' IlCrIll ;tIc 1n .It7"?. i1lit'% st,.-lied 1i hc itIcrkliC
1'1 (iti nr.l ('l1i /CI'
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I.ll.. llh Itl .11I l bl rlllp.llllll t.l t."llrtld
h I l .fil ill' illl. lg
complaint deny the commission of any unfair labor prac-
tices.
The parties ,.ere afforded a full opportunlity to e
heard, to call. exanile and cross-examinne ,,,itnesses, aid
to introdtuce relevanlt evidence. Since the close of the
hearing, briefs havec been received from the (ieneral
Counsel and counsel for Respondent.
Upon the entire record and based on my observationl
of the witnesses and consideration of briefsck submitted, I
make the following:
FINDtINGS ot F \CT
I. J RISI)ICI ION
Respondent is a Montana corporation engaged in the
sale and repair of automobiles with its automobile dealer-
ship and principal place of business located in Hilliigs,
Montana. In the course and conduct of its business oper-
ations, Respondent has an annual gross volume of busi-
ness il excess of $5(X),0(K), and annually purchases aind
receives automobiles and other goods and materials
valued in excess of 50.0(00 from suppliers located out-
side the State of Montana. It is admitted, arid I find, that
Respondent is now, and has been at all times material
herein, an employer engaged in commerce swithin the
meaning of Section 2(6) and (7) of the Act.
II. I il I AOR ORGANIZA IION IN( OI VI)
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
nit. THll UNI IR I IttOR PR \( lFS
A. Isues
Tile principal issues raised by the pleadings are v, heth-
er Respondent violated Section 8(a)(3 ) and/or (4) of the
Act by discharging employee Carl White. and ,.hether
Respondent iolated Section 8(a)( ) of the Act by isti-
tuting newv work rules arid by other acts and conduct.
B. aze acl.,
I. The 8(a)( 1 ) allegations
Michael' Krieger, a current employee of Respondent,
testified that in late April. during the course of an orga-
nizational campaign by the Union among Resporidcnl's
employees, he was invited into the office of Rock Ham-
ilton. service manager, where several individuals \nc re
discussing the advantages and disadvantages of union
representation. Krieger testified as folloxs regarding the
ensuing conversation:
I did not care to get ivolved inll the discussion,
and then [Hamilton] turned to me and he said hatl
Mr. (iodxin [Respondent's owner] antcd to m:ike
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708R DECISIONS OF NATIONAL LABOR REI.ATIONS BO()AR)
amends and he wanted to have a meeting with em-
ployees where they could bring out all the griev-
ances without fear of losing their job or anything
like that. He wanted to sign a contract with us
without involving a third party.
Hamilton's testimony implies that his remarks to
Krieger were prompted by Krieger's suggestion that the
Union would have been unnecessary had there existed a
better relationship between Godwin and the employees.
Hamilton admits replying to Krieger that "Mr. Godwin
probably would have no objection to having somebody
in the shop negotiate with him rather than through
somebody else." Frederick Fresonke, parts manager and
admitted supervisor whom Hamilton believes was pres-
ent during the conversation, testified regarding different
matters herein but did not corroborate Hamilton's ver-
sion of the conversation.
James Lewis, a current employee of Respondent, testi-
fied that on or about May 15, Parts Manager Fresonke
mentioned, during the course of a conversation about the
Union, something to the effect that Godwin would not
negotiate with the Union.4 Lewis testified that he was
unable to recall exactly what Fresonke said about this,
and further stated that although other subjects were dis-
cussed, he could not recollect the nature of such discus-
sions. Fresonke testified that during the course of group
conversations he may have expressed certain opinions
about the Union. However, Fresonke did not elaborate
or provide specific accounts of the opinions he may have
rendered.
Jim Boyles, who was discharged by Respondent in
June, testified that on three separate occasions prior to
the election, each following a scheduled union meeting,
Service Manager Hamilton asked him what had occurred
at the meeting. On each such occasion, Boyles merely re-
plied that the benefits of the Union were discussed.
Boyles further testified that he was active on behalf of
the Union and was probably wearing a union button and
hat at the time of these conversations with Hamilton.
Moreover, Boyles admits that on one or more of these
occasions he approached Hamilton and initiated the con-
versations about the union meetings. Hamilton testified
that he did not inquire about what happened at any par-
ticular meeting, and that during the course of the con-
versations Boyles would voluntarily express his feelings
or opinions about the Union or about Godwin.
In June, following the election, four employees, in-
cluding Krieger, were to be initiated into the Union.
Krieger testified to the following statement by Godwin:
He walked up to me and said that he heard there
would be initiation into the union and he said he
would not invest his money or join in an illegal
union that hadn't been certified. Then he turned to
go and he said again, "I just wanted you guys to
know the facts."5
The complaint alleges that "Fresonke informed employes hal Re-
spondent would nlever go union "
A this time the election objections which Respondenl had iled .were
being invesligated by the Regional Office and the Union had nlt yet
heen certified
Godwin testified that on May 16, the day following
the election, as a result of a significant decline in business
resulting in a financial crisis, he instructed Hamilton to
prepare a list of cost-saving methods, and that Hamilton
issued the list to the employees without Godwin being
able to review or edit it. At a shop meeting held on the
evening of May 16, at 5:15 p.m., Hamilton distributed the
following memorandum to the unit employees:
1. SHOP NITE WILL BE DISCONTINUED
DUE TO THE COST OF UTILITIES AND
SHOP MATERIALS.
2. THE COMPANY WILL NO LONGER
ALLOW CHARGING TO EMPLOYEES.
3. THERE WILL BE NO WORKING ON
PERSONAL VEHICLES OR PARTS OF PER-
SONAL VEHICLES ON COMPANY TIME OR
LUNCH BREAKS.
4. SHOP TOOLS OR EQUIPMENT WILL
NOT BE REMOVED FROM THE SHOP TO BE
USED ON PERSONAL VEHICLES AT HOME.
5. THERE WILL BE NO DISCOUNT ON
PARTS AND LABOR FOR EMPLOYEES.
6. EMPLOYEES WILL FURNISH THEIR
OWN COFFEE, CUPS, CREAM AND ETC.
7. COFFEE BREAKS WILL BE FROM 10:00
A.M. to 10:15 A.M. AND 3:00 P.M. TO 3:15 P.M.
ONLY.
8. THERE WILL BE NO PHONE CALLS TO
EMPLOYEES, UNLESS AN EMERGENCY.
ALL PHONE CALLS WILL BE ANSWERED
ON COFFEE BREAK OR LUNCH TIME.
9. BOB HUSKY WILL BE ASSISTANT
SERVICE MANAGER AND WILL HAVE ALL
AUTHORITY OF SERVICE MANAGER.
10. SERVICE MANAGER'S OFFICE WILL
NOT BE USED AS A THRU WAY TO RES-
TROOMS OR SHOP.
11. THE CONFERENCE ROOM WILL NO
LONGER BE USED FOR LUNCH PERIOD.
According to the testimony of various employees, Ham-
ilton handed out the document, simply stated, without
explanation, that these would be the new rules, and sug-
gested that the rules were not his idea.
Hamilton testified that several weeks prior to the elec-
tion he was requested by Godwin to determine some
way to cut costs as a result of the poor financial condi-
tion of Respondent. He prepared the above memoran-
dum thereafter, and had planned to issue it on May 15.
However, remembering that May 15 was the day of the
election, he waited until the following day to issue the
new rules. According to Hamilton the rules he fashioned
were not specifically authorized by Godwin, and imme-
diately following the issuance of the memorandum to the
employees he was reprimanded by Godwin and was told
to revise some of the policies which Godwin did not be-
lieve would result in cost-cutting efficiencies. As a result,
Hamilton prepared and distributed the following notice
to the employees the next day:
HII.I ANNS CHIRYSILER-PIlYMO()LIIi, INC.'
ITEMS 1, 2, 5, 8. ARE REVISED AS FOL-
I OWS:
1. SH()OP NITE WIL. E LEMPORARILY
DISCONTINUED UNTIL. FURTHER NOTICE.
2. THE COMPANY WILL ALLOW EM-
PLOYEE CHARGING AS LONG AS THE AC-
COUNT IS PAID IN THIRTY DAYS.
5. EMPLOYEES WILL HAVE A 25% DIS-
COUNT ON LABOR AND 10%, PLUS COST
ON PARTS AS BEFORE.
8. ALL PHONE CALLS TO EMPLOYEES
WILL BE TAKEN BUT PHONE CALLS MUST
BE ANSWERED ON BREAK OR LUNCH
PERIOD.
The record shows that shop night, a time set aside
each week for employees to use Respondent's premises
and equipment for servicing their personal vehicles, was
discontinued thereafter for about a month, and is current-
ly held from 5 to 8 p.m., a reduction in hours, as there
was no prior time limit: the new charge account policy
was not implemented, and Respondent's prior policy re-
garding the charging of parts by employees has contin-
ued; employees are not now allowed to work on person-
al vehicles during lunch breaks, as Hamilton believed
that the prior policy of permitting such work resulted in
added costs to Respondent for materials and items which
were used by the employees; employees now have to
furnish their own coffee, cups, and cream, because such
items are no longer supplied by Respondent; the new
phone call policy was put into effect; employees are no
longer permitted to use Hamilton's office as a shortcut to
the restrooms and water fountain as, according to Hamil-
ton, this tended to interfere with Hamilton's work; and
the conference room is no longer used for lunch because,
according to Hamilton, the employees would not clean
up the area after using it.
On May 21, the following letter, signed by Godwin,
was distributed to the employees:
Several days ago at our meeting in the customer
lounge6 I reiterated to you as honestly and factually
as I could the economic condition of this Company;
namely, that the loss of the Toyota franchise, result-
ing in the loss of 300 new car sales and reduction of
parts and service sales on both new and used Toyo-
tas made it impossible for us to stay profitable and
create the necessary cash flow to run our business.
The loss of Toyota coupled with Chrysler
Motors' failure to deliver to us saleable 1979 models
until early December and a severely harsh and pro-
longed winter, we ended 1978 with a huge loss.
(However, I do not recall having terminated anyone
without cause.) These losses have continued
through March of 1979 ($34,088 for 3 months, to be
exact.)
e There is no further record edence of the date or details of such a
meeting in the customer lounge, hut apparnllk the meeting occurred
prior to the elecion
Reduction of, or total elimination of some com-
pany bestowed extras is long overdue simply for
economic reasons and sound business practice.
For this dealership to remain in business all de-
partments will undergo an objective analysis dedi-
cated to reducing any and all frills adversely effect-
ing profits and feeding overhead.
A strong effort will be made to return this store
to profitability.
If it is found that you are not doing your job or
assigned duties as proscribed by your supervisor
with the personal motivation to do your part to
help make this dealership profitable again, we will
ask for your resignation.
The context of this letter is almost exactly what I
said to you at our last meeting, which was interpret-
ed for you as a "scare tactic."
I assure you, one and all, this should be received
as fact if we are to turn prolonged periods of loss
into profit, a continuing business, and jobs.
Employee Carl White testified that on May 24 in the
office of Body Shop Foreman Bernie Irsik, White asked
Irsik, "Did you hear that they fired Larry [Byers]?"7
Irsik replied, according to White, "Yes, we got rid of
one of those agitating son-of-a-bitches." Later, after re-
viewing notes he apparently made at the time of the con-
versation, White testified that Irsik responded, "[W]e got
rid of one of those agitating sons of bitches after the
election: too bad it wasn't before." Irsik specifically
denied any conversation of this nature.
2. The discharge of Carl White
Carl White began working for Respondent as a combi-
nation bodyman and painter on December 6, 1978, and
was terminated on June 7. 1979. He was visibly active on
behalf of the Union, wearing a union button and hat, and
openly spoke in favor of the Union with his fellow em-
ployees. He was subpenaed by the Union to attend a rep-
resentation hearing on April 17, and attended and active-
ly participated at union meetings. White and the four
other bodymen in Respondent's employ worked on a
straight commission of 45 percent of the total labor esti-
mate for each vehicle, and were allowed to work largely
at their own pace and maintain their own hours, appar-
ently within general limits set by Respondent. Respond-
ent admits that White was a very experienced and capa-
ble employee, and in terms of volume of work during his
entire period of employment, White earned only $10 less
than the highest paid bodyman.
On May I, White requested a meeting with Godwin to
discuss the work assignments he had been given by his
supervisor, Body Shop Foreman Bernie Irsik. Godwin
invited Robert Ryan, secretary of Respondent and also
Respondent's attorney, to the meeting. White complained
that because he was conspicuously prounion Irsik was
discriminating against him by not assigning him a fair
share of the work. White apparently attempted to sup-
7 Bers as knov, n h) Respondenlt to he an actis union adherent It is
not contended by the (ielneral Coilncl hati H crs' discharge was for
other than ust ause
701))
71() I)IICISI()NS ()F NAIO()NA I .A13()R R IAIONS B()ARD
port this contention with certain work orders. odswin
said he would look into the matter. White expressed his
feeling that if he was compelled to make a decision be-
tween receiving sufficient work or assisting the Union.,
he would opt in favor of the former alternative.
White apparently believed that he was continuing to
be assigned less than his proportionate share of the work,
and on May 25, some 10 days after the election, the
Union filed an unfair labor practice charge on his behalf,
amended on May 31, alleging that since February 1979,
upon learning of White's union membership and observ-
ing him wearing a union button, Respondent "cut down
severely on Carl White's work." 8
White testified that a day or two prior to his dis-
charge, Godwin approached him and the following con-
versation occurred:
Mr. Godwin came up and he said, "What in the
goddamn hell do you mean filing these charges?"
and I said, "Before it goes much farther, maybe you
should talk to Bernie." He said something to the
effect I've talked to Bernie, and I said, "Well, I've
talked to Bernie, and I think you ought to talk to
him," and somewhere in the conversation, Bernie
walked up-whether he came clear up or not, I
can't recall, but he did walk up, and Mr. Godwin
asked me if I was going to drop the charges. I said
I was considering it, and I stated that Bernie had
been trying to assign me a little better work and
that I was considering it. Again just before he left,
he asked me if I was going to drop the charges, and
I said I was thinking about it.
Godwin acknowledges that a conversation occurred
regarding the aforementioned charge and testified that he
recalls telling White that he was capable of doing a good
job, and that he had no justification for complaining
about the work allocation. Moreover, Godwin testified
that he may have asked White whether he was going to
withdraw the charges. Scott Kautzman, a former em-
ployee, testified that he overheard part of the conversa-
tion and recalls Godwir saying, "Mr. White, what in the
hell are you doing to me," but was unable to hear the
remainder of the conversation because an air compressor
suddenly started up.
On June 4, Respondent filed a statement with the Re-
gional Office in support of its election objections stating,
inter alia. that:
Billings Chrysler-Plymouth, Inc. requests the
right to take the discovery depositions of the union
officials named above, together with the depositions
of James Boyles, Larry Byers, Carl White, Jerome
Collins and Mike Huevare for the purpose of sup-
porting the charge of coercion, intimidation and of
the union plant or agent placed into the employee
group by the union.
The complaint herein does n allege that While was discriminated
againsl in this regard White continued to wear a union hutton rflloiltg
the election until the time of his termination
Scott Kautzman testified that about a week prior to
White's discharge Irsik assembled the body shop employ-
ces, and asked them if they ',,ere being harassed by
White. Irsik went on to state that if the employees sub-
mitted a letter to this effect. Respondent may be able to
discharge White.9 Kautzman testified that in response to
Irsik's question he mentioned that White was not diligent
in cleaning the paint booth or equipment, and that White
wanted to work only on Chrysler vehicles and preferred
smaller jobs. Kautzman stated at the hearing that al-
though he had no disputes or arguments with White, he
was present during a quarrel between White and employ-
ee Ron Metzger, and that White had "quite a few"
verbal confrontations with employee Curtiss Rhodes.
Kautzman further testified that there were times when
White did not take proper care of certain shop tools so
that they could readily be used by other employees; that
White had a habit of singing which would disturb
Rhodes; and that White would often engage employees
in conversation, thus disrupting their work.
Irsik testified that he did not remember the aforemen-
tioned discussion with the body shop employees con-
cerning White, but admitted that such a discussion was
"possible." Moreover, Irsik admits receiving a note con-
cerning White from employee Dale Mysch on the day of
and immediately prior to White's discharge, indicating
that "White was putting pressure on him and kind of
harassing him" about joining the Union. However, Re-
spondent did not produce this note or proffer it as a
reason for White's discharge.
Ron Metzger, called as a witness by Respondent, testi-
fied that he and White started having disputes after
White had filed the aforementioned unfair labor practice
charge, but had no difficulty with White prior to that
time. Metzger explained that:
Well, your Honor, after the rest of the shop had
found out that Carl had filed a suit, actually every-
body was unhappy about it, and nobody was willing
to help him with anything any longer. They
wouldn't talk to him or anything. That was the
reason for it .... Carl asked me why everybody
was treating him the way that they were. I told
him, I says, there was a little profanity involved,
and I told him that that was the reason, that be-
cause of the suit, and he said, then Carl wanted to
take me out in the alley and fist fight, and I told
him that I wouldn't stoop to his level for that. And
then Carl told me, he aid, "O.K., if that's the way
you feel, I'll handle you accordingly," and that was
the end of it.
JUDI)GE WACKNOV: Now, did you ever report that
to management?
THE WITNESS: No, sir.
JUDGE WACKNOV: And approximately when was
this?
THE WITNESS: I would say approximately within
a week of his discharge.
° A few days later. according to Kautzman. Irsik came out of his office
with a piece of paper in his hand, and indicated that he had the letter he
had requested
IlL..INGS '(II\Sl.ltR-'l.YNI)L' Il. INC 7 1
Jul)1(l W \CKNO: Well, hell to your knowl-
edge did that conme to mlllaelnrllt's attention9
Tit WII N-SS: I don't believe it ever did, sir.
JUl)il. WACKNOV: Did vou ever tell anyone from
management about that dispute between you and
Mr. White?
THt WI TNSS: Not that I remember, sir. t
Curtiss Rhodes, another bodyman called by Respond-
ent as a witness, testified that White would seem to in-
tentionally seek ways to irritate or annoy employees, and
therefore Rhodes attempted to avoid any communication
or contact with White throughout the period of White's
employment. There is no evidence that Rhodes specifi-
cally complained to Irsik about White.
Respondent contends that the primary reason for
White's discharge was his failure to perform work on
two automobiles in a timely fashion during the months of
April and May. One car, a Plymouth Duster, came in for
repair on May 9, and was assigned to White. Irsik testi-
fied that he advised White that the car had been prom-
ised to the customer on Friday of that week, but the
repair work was not completed until the following Tues-
day. White testified that if there was a deadline on com-
pleting the repair work he would have been so advised,
but was not, and that Irsik never spoke to him about this
matter until the time of his discharge. Respondent did
not proffer any documentary evidence supporting Irsik's
testimony that the car had been promised to the custom-
er on a certain date.
The other car, a Plymouth Horizon. came in between
April I and 15, and the last day White performed work
on it was on May 25. There had been extensive body and
mechanical damage to the car, and when the vehicle was
first assigned to White he advised Irsik that there ap-
peared to be frame damage. Extensive work was done to
attempt to straighten the frame, but this procedure only
caused further damage, and upon determining the frame
could not be repaired, a new frame rail was ordered. The
new frame rail was not received until April 30, and only
then could the work on the vehicle commence, as virtu-
ally all of the work was dependent upon the frame rail
being in place. Ron Metzger, a bodyman, testified on
behalf of Respondent that the repair of the vehicle
would customarily take about 5 weeks, which is the ap-
proximate amount of time, from the date the frame rail
was received, that it took White to complete the job.
Moreover, White was not given a deadline on this partic-
ular vehicle, and was assigned to work on other vehicles.
On the morning of June 7, Irsik and Service Manager
Hamilton approached White, and handed him the follow-
ing letter signed by Godwin:
Mr. Carl White,
On a number of job assignments during the past
several months you have, for reasons unknown, de-
liberately extended the completion of the work.
This attitude alienates the customer who pays
your salary and mine and also ties up valuable work
area unnecessarily.
Because of the abose rasons you arc tcrnlinated
effective this date. June 7, 179.
Please complete your .%.ork in process and flag all
time due you by 4 P.M so that the business office
may process your final check.
You have not been cmploed for a continuous 12
months, therefore you do not qualify for vacation
pay.
Later that morning, White asked Irsik to tell him what
jobs he had not completed in a timely fashion. Irsik re-
plied that White had delayed the completion of a job in-
volving the repair of a "window channel" on a vehicle.
White advised Irsik that the job in question was per-
formed by another bodyman, not White. Then Irsik men-
tioned the Plymouth Duster, and White denied that the
work on this vehicle had not been performed in a timely
fashion. According to White, Irsik mentioned no other
jobs and advanced no other reasons for White's dis-
charge. Irsik corroborated this testimony of White.
C. A4nalysis and Conclusions
1. The 8(a)(1) violations
I credit the testimony of former employee Michael
Krieger and find that Service Manager Hamilton advised
Krieger that Respondent would prefer to deal directly
with employees by providing a receptive forum for their
grievances and by signing a contract with the employees
without the intervention of a union. Krieger's testimony
is, in effect, corroborated by Hamilton, who admits sug-
gesting to Krieger that Respondent would probably have
no objection to negotiating directly with the employees.
Moreover, assuming arguendo that Hamilton has a more
accurate recollection of the conversation, Hamilton's tes-
timony does not indicate that Krieger initiated the sub-
ject of direct negotiations with Respondent, but rather
that the idea emanated from Hamilton in response to
Krieger's remarks that a good relationship did not exist
between Respondent and the employees. I find that by
such statements, Respondent violated Section 8(a)(1) of
the Act, as alleged. See NMulti-National Food Service. Divi-
sion of Schwan's Sales Enteiprises, Inc., 238 NLRB 1031,
1032 (1978): Ring Metals Company, 198 NLRB 1020
(1972); Merle Lindsey Chevrolet, Inc., 231 NLRB 478, 483
(1977); Uarco. Incorporated, 216 NLRB 1 (1974).
Employee Lewis testified that Parts Manager Fresonke
mentioned something to the effect that Respondent
would not negotiate with the Union. Lewis' testimony
was admittedly vague, and was inconsistent with the
complaint allegation herein, and I find that Lewis was
unable to recall this conversation with sufficient certain-
ty to warrant the finding of a violation. Therefore, I
shall dismiss this portion of the complaint.
Similarly, I shall dismiss the complaint allegation that
Service Manager Hamilton coercively interrogated em-
"' Respondent does not contend that it was aware of this incident
prior 11o the hearing Moreover, it appears hat White's suggestion of a
fist fight may hase been prompted by Metzger's use of profanity tloard
W'hite, as indicated by Metzger', teslimon5
712 )DECISIONS ()F NAINAII. I.AIt()R Rl.AIONS O()ARI)
ployee Boyles about what occurred at various union
meetings. The record establishes that some, if not all, of
the conversations about union meetings were initiated by
Boyles, a visibly active union adherent, and Boyles' ab-
breviated testimony concerning only one segment of the
conversation, apparently out of context, does not provide
a sufficient foundation upon which to base the finding of
a violation. See The Times Publishing Company 231
NLRB 207, 212 (1977); .lrvin Industries Inc., 226 NLRB
925 (1976); B & G Chrysler-Plymnouth, Inc., and its succes-
sor Bill George Chrysler-Plymouth, Inc., 186 NLRB 282,
284 (1970).
The complaint alleges, and counsel for the General
Counsel argue in their brief, that the above-enumerated
rule changes instituted by Respondent the day following
the election were unlawfully motivated in retaliation for
the employees having selected the Union as their collec-
tive-bargaining representative. Respondent presented tes-
timonial evidence in support of its position that the
changes were not retaliatory, but were economically mo-
tivated, and designed to cut costs due to economic neces-
sity. There was no evidence presented by the General
Counsel that Respondent's financial circumstances were
other than what Respondent claimed them to be, and Re-
spondent's conduct in initiating the changes immediately
following the election does not appear inconsistent with
its economic defense. Moreover, it appears that prior to
the election the employees were made aware of Re-
spondent's financial circumstances, and following the
election, the employees were advised that the rule
changes were economically motivated. Although some
of the changes are clearly not for the purpose of cutting
costs, such as precluding the use of the conference room
for lunch, or prohibiting the use of Hamilton's office as a
short cut to the rest room, neither do such rules appear
to be retaliatory, in or without justification. And while
certain other changes would appear to result in minimal
cost-saving efficiencies, the projected savings generated
by the rule changes, collectively, do not appear to be in-
substantial.
On the basis of the foregoing considerations, I con-
clude that the record evidence is insufficient to substanti-
ate that Respondent instituted the rule changes as a re-
taliatory measure in violation of Section 8(a)(1) of the
Act, and therefore I shall dismiss this allegation of the
complaint.
Following the election, and during the pendency of
election objections filed by Respondent, Godwin sug-
gested to Krieger, who was about to join the Union by
paying an initiation fee, that he should realize that the
Union had not yet been certified and that it may be wise
to wait until the Union was officially designated as the
employees' bargaining representative. There is no indica-
tion that Krieger refrained from joining the Union at the
time, nor was Godwin's statement couched in the form
of a threat of repercussions by Respondent should
Krieger not heed Godwin's advice. I conclude that God-
win's candid suggestion to the effect that, under the cir-
cumstances, Krieger should delay joining the Union until
he was assured of union representation, is a statement of
opinion falling within the protection of Section 8(c) of
the Act. Cf. Erick R. Weber and Bernadine T. Weber, Co-
Partners. d/b/a WbervS Bakery, 211 NLRB 1, 15 (1974).
I shall therefore, also, dismiss this allegation of the com-
plaint.
White testified that Irsik spoke in derogatory and hos-
tile terms about Larry Byers who had been discharged,
stating that Respondent had discharged "one of those
agitating son-of-a-bitches" who favored the Union. While
Irsik denied that such a conversation occurred, Irsik's
testimony regarding the matter of attempting to cause
employees to furnish Respondent with reasons for dis-
charging White, discussed inyra, was less than candid,
and reflects unfavorably upon Irsik's veracity. I therefore
credit White, who appeared to have a clear recollection
of this conversation and who otherwise appeared to he a
credible witness, and find that by such a statement, al-
though purportedly directed toward Byers, Irsik implicit-
ly conveyed the threat of hostility and possible repercus-
sions by Respondent against White, who also was active-
ly supporting the Union. See Henriksen, Inc., d/b/a
Gibson Discount Center, 191 NLRB 622, 628, 629 (1971),
enfd. as modified 481 F.2d 1156 (5th, Cir. 1973); Atlantic
Steamers Supply Co., Inc., 188 NLRB 282, 286 (1971);
Wilker Bros. Co., Inc., 236 NLRB 1371, 1372, 1377
(1978).
I credit the testimony of White, corroborated by the
credible testimony of Kautzman who overheard a por-
tion of the conversation, and find that Godwin, who ad-
mitted the substance of such conversation, expressed his
strong displeasure with the unfair labor practice charge
filed on White's behalf, and repeatedly asked White if he
intended to withdraw the charges.'' Such interrogation
is coercive in nature, and clearly tends to inhibit and in-
terfere with employees' rights under the Act to file
charges with the Board. I, therefore, find that by such
conduct, Respondent violated Section 8(a)(1) of the Act
as alleged. See Donald E. Hernly. Inc., 240 NLRB 840
(1979); Narragansett Restaurant Corp., 243 NLRB No. 30
(1979), ALJD, sec. III, E.
2. The discharge of White
While the June 7 letter of discharge only mentions
White's failure to timely complete unspecified jobs as the
reason for his discharge, Respondent has also advanced
at the hearing a second reason for terminating White,
namely, that he engaged in harassment of other body
shop employees, and disrupted their work.
All but one of the body shop employees testified
herein, and although a composite of their testimony re-
veals that White, from the beginning of his employment,
may have exhibited a somewhat wry sense of humor
which at least some of the employees found offensive,
each denies complaining to Irsik or any representative of
management about White prior to the meeting which
Irsik held.
Irsik admitted that from the beginning of White's em-
ployment, White expressed his preference to work on
Chrysler manufactured vehicles on which extensive
work was not required. There is no showing that Re-
' While White's charge. after investigatlion. was apparently deemed to
lack merit, the record does not establish that the charge was not filed ill
good faith
BILLINGS CHRYSLER-PLYMOUFtH. INC. 713
spondent was reluctant to accede to White's request in
this regard, or that White refused any work assignments.
Indeed, Irsik testified that it was common and acceptable
for bodymen to express a preference for a particular type
of work, and Irsik attempted to accommodate each em-
ployee in this regard. Thus, Irsik acknowledges that he
would assign Metzger the larger jobs, pursuant to
Metzger's request.
Kautzman credibly testified that about a week prior to
White's discharge, which would have been shortly after
Respondent received the unfair labor practice charge
filed by White alleging discriminatory treatment, Irsik as-
sembled the body shop employees in an attempt to get
them to provide reasons to support the contemplated dis-
charge of White Respondent did not attempt to show
that such a meeting did not take place or that Kautz-
man's testimony should be discredited. Apparently, the
responses received by Irsik merely constituted a reiter-
ation of White's behavior which he had exhibited, and
Irsik had apparently observed since the beginning of
White's employment. Following the meeting, Irsik an-
nounced that he received a letter from bodyman Dale
Mysch which would support the discharge of White, yet
Respondent did not produce this note at the hearing.' 2
Irsik testified, in abbreviated fashion, that although he
did not remember the aforementioned meeting, it was
"possible" that he held such a meeting. Moreover, as
mentioned above, Irsik admits receiving a note from
Mysch concerning White. Irsik impressed me as a knowl-
edgeable individual, and the record attests to his ability
to recount the details of matters which antedated and
succeeded the meeting regarding White. Under the cir-
cumstances, I do not believe that Irsik's memory regard-
ing such a significant matter was impaired, but rather
that his alleged failure of recall concerning this matter
was contrived in order to conceal facts which might be
inculpatory to Respondent. No other explanation for
Irsik's memory lapse appears tenable under the circum-
stances.
The disputes or quarrels which White may have had
with his fellow employees largely were the result of per-
sonality conflicts which had been apparent since White
initially became employed. It does not appear that
White's alleged talkativeness was of concern to Respond-
ent,'3 as the record shows no warnings to White about
this, and the extent of White's production would other-
wise show that he did not waste time by engaging in
protracted conversation. The record indicates that the
relationship between White and his fellow employees
became strained as a result of the unfair labor practice
charge which he filed alleging that he was not receiving
a proportionate share of the work assignments, and
thereafter the body shop employees ignored him and re-
fused to offer him assistance when needed, apparently
because the employees believed that White, through the
12 White also received a cryptic note from Mysch about the end of
May or early June, il hi. h MyNsch adised hat his dire financial straits
would intensify 'a hen vie go on strike." Further. this note threatened
White with physical harm for bringing n he Uinion While reported the
matter to the police
1' Irsik admits that he obserxcd While sitilng ith employee, eeral
months after White began l orklng foir Respondent
unfair labor practice charge, was attempting to acquire
more than his fair share of the work. Not only did Re-
spondent not attempt to ease such tension among the em-
ployees, but rather Respondent through Irsik, exacerbat-
ed the situation by encouraging the employees to pro-
vide reasons to justify the discharge of White at a time
when Respondent was well aware of the antagonism for
which the employees harbored against White. However,
the record does not show that White, during this period,
harassed or disrupted the work of employees, as con-
tended by Respondent.
Respondent's contentions regarding White's alleged
slowness of work is not supported by the record. Thus,
during the entire course of his employment, White was
one of the two top producers in the body shop, and it
does not appear from an examination of his monthly
earnings that his work was slowing down.' 4 Moreover,
the number of vehicles per month on which White
worked does not reflect a work slowdown. ' s
Nor does the evidence presented by Respondent sub-
stantiate its contentions that White deliberately extended
the completion of the work on two automobiles. There is
no documentary record evidence to support Irsik's testi-
mony that the Plymouth Duster was promised to the
customer on a certain date, or that White was so ad-
vised, and I credit White that he was never told of such
a commitment. Moreover, the credible record evidence
indicates that the extensive work on the Plymouth Hori-
zon would customarily take about 5 weeks from the time
the frame rail was received, and it appears that White
performed this work within that time period. 6 More-
over, it is of great significance that Irsik admittedly did
not mention this latter matter when furnishing White
with the particular reasons for his discharge on June 7.
In summary, I find that the reasons presented by Re-
spondent for discharging White are not supported by the
(4 Thus, White's earnings per month were as tillo', s
Dec 1978
Jan 1979
Feb 1979
Mar 1979
Apr 1979
May 1979
Total
$1,409 63
$1.21 16
$1.359 10
S1,563 20
$1,406.8 1
S1.317.74
S8.26764
is White sporked on1 22 chicles in December, 16 in January, 20 in
February, 21 in March. 37 i April. 25 in May. and 16 from June 1 7
1i I discount the tesllmon, y of emploee Rhodes, ho expressed a
strong dislike of White, that this , ork should hase taken oinl 2 3
dlay, Irsik, at Otne point, estimaled that Whiele c.ld he completed the
work in about I eek, assuming White spellt the entire time working
OI11i on this ehicle loAser. Irsik dlid not eplain 'Ahe he failed to ii-
struct While to complete the ehicle althlb hat time frame. or h he
coltinued Io assign While a substiantial ain(ult Olf additional skork. as the
rc.erd sho, s. hroighlii th rllol tih t M5a5
714 l)[ CISIONS (OF NAlI()NAI. I.AB()R RIAlIONS BI()ARI
record evidence, and I am therefore constrained to find
that the alleged reasons for White's discharge are mere
pretexts. proffered to conceal Respondent's true motives.
It is clear that Respondent's president, Godwin, was
highly upset with White for causing the Union to file the
unfair labor practice charge on his behalf, and only sev-
eral days prior to White's discharge berated him for
filing what Giodwin believed to be a totally unjustified
claim. Concurrently therewith, Irsik assembled the em-
ployees and solicited criticism of White for the purpose
of effectuating his discharge. As a result of the foregoing
considerations, I conclude that Respondent discharged
White for the reasons alleged in the complaint, namely
White's activity on behalf of the Union and the filing of
an unfair labor practice charge on his behalf by the
Union. I therefore find that the discharge of White is
violative of Section 8(a)(3) and (4) of the Act,'7 as al-
leged. See First National Bank of Pueblo, 240 NLRB 184
(1979); Magic Chef Inc., 181 NLRB 1136 (1970), enfd.
443 F.2d 374 (6th Cir. 1971); Asheville Steel Company,
202 NLRB 146, 153 (1973), enfd. 487 F.2d 1398 (4th
Cir.); Industry General Corporation, 225 NLRB 1230,
1233 (1976).
CONCI USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(3) and (4) of
the Act by unlawfully discharging employee Carl White
for causing the filing of unfair labor practice charges and
for engaging in union activity.
4. Respondent has violated Section 8(a)(1) of the Act
by coercively interrogating employees regarding the
filing of unfair labor practice charges, by soliciting the
presentation of grievances, and suggesting that it would
sign a contract directly with the employees in order to
discourage employees from designating the Union as
their collective-bargaining representative, and by threat-
ening employees with the possibility of adverse treatment
as a result of having engaged in union activity.
5. Except as found above, Respondent has not engaged
in other unfair labor practices as alleged.
Tlm R MI)YN
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it be required to
cease and desist therefrom and from any like or related
conduct, and to post an appropriate notice, attached
hereto as an Appendix.
Moreover, it is recommended that Respondent make
whole employee Carl White for any loss of pay as a
result of the discrimination against him, and reinstate him
to his former position of employment, without prejudice
to his seniority or other rights and privileges. Said back-
pay is to be computed in the manner prescribed in F W.
Woolworth Company 90 NLRB 289 (1950), and Florida
SI 8()(4) )1' Ile Atl prllllhbits tli disch.arge of emnplo s ,, for
filing chalrgc" Or giing Iclsilolll n 1III1 Ihc Act See I'vcrag'l IHroIluhr
uturAu. Ira. 2 N RtI 5'. R l i) (19731t
Steel Corporation. 231 NLRB 651 (1977). See, generally,
Ixis Plumbing & Hleating Co., 139 NLRB 716 (1962).
Based on the foregoing findings of fact, conclusions of
law. and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
()RDER '"
The Respondent, Billings Chrysler-Plymouth, Inc.,
Billings, Montana, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging employees for causing the filing of
unfair labor practice charges, or for engaging in union
activity.
(b) Soliciting the presentation of grievances in order to
discourage employees from designating the Union as
their collective-bargaining representative.
(c) Suggesting to employees during the course of an
election campaign that the Company preferred to sign a
contract directly with the employees.
(d) Coercively interrogating employees regarding the
filing of unfair labor practice charges.
(e) Threatening employees with the possibility of ad-
verse treatment as a result of having engaged in union
activity.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the National Labor Rela-
tions Act, as amended.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer reinstatement to employee Carl White and
make him whole in the manner set forth in the section of
this Decision entitled "The Remedy." In this connection,
Respondent shall preserve and. upon request, make avail-
able to the Board or its agents, for examination and
copyinlg, all records, including the payroll records of
other employees, necessary to analyze and compute the
amount of backpay due.
(b) Post at its Billings. Montana, facility copies of the
attached notice marked "Appendix. " l!' Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by an authorized rep-
resentative of Respondent, shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, where notices to employees are customarily
'" In th ecin no exce ption% are filed as' prositletl bh Sec 110246 of
IthI Rulcs ind Regulaiionlls ) Ihe Nalllonall L. .h Relitionu s It)lard. the
firldillng. iicllctl i, oll illl a rcillllllld,(di ()tdCIi litiu .' ll 111. .1i prol tlel
ill Sc 1()2 48 tf tile R ul e .lld1 Regulationl\ . h. itIpItd .I the tloard and11
beclitne its findlinigs. ciIIlusIOTs ilitl ()rdc. ;id ill o bJectitt ,l Ihcfcto
IIl bhe lrcr ll saiecd Ittr ill purploses
'i Il hi eVeill hia l this ()rdcr is entifirtcd i , ai Jtludgllelt of il Luilcd
States (tourl of Appeal', tl e oturds iI te1l a l ticI telodinIig f O tl h
()rdle it' 1ltil Naltlulrll I hor Rt.iall)n iI llid " i sill adi )sti Ic l prsl-
;l 1)to i Jdgrilentl the tnited S;ILta', (Ct1lIlt ,t Appal [Ilioreing .11
()td l ot til Lh Nilto ;lil l ithr Relatiins Irawrdt
BIL.IN(iS CIRYSI.ER-PILYMI()O'TH. INC. 7i5
posted. Reasonable steps shell be taken by Respondent to (c) Notify the Regional Director for Region 19, in
insure that said notices are not altered, defaced or cov- writing, within 20 days from the date of this Order, what
ered by any other material. steps Respondent has taken to comply herewith.