Import Body Shop, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1982

262 N.L.R.B. 1188 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Import Body Shop, Inc. and Jose T. Villazon and
District Lodge No. 190, Local Lodge No. 1305,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Cases 20-CA-
15749 and 20-CA-15777
July 22, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On August 4, 1981, Administrative Law Judge
Russell Stevens issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions' and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting
brief.
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,2 and conclusions 3 of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
As the Administrative Law Judge found, Re-
spondent unlawfully discharged Jose T. Villazon
on September 3, 1980, the discharge to be effective
on October 3, 1980. However, on September 27,
1980, Respondent, on finding reason to believe that
Villazon had intentionally damaged the hood
hinges of an automobile he was repairing, made the
discharge effective immediately. The Administra-
tive Law Judge found that Villazon is entitled to
reinstatement to remedy the unlawful discharge of
September 3, despite the subsequent minor damage
that Villazon caused, in a moment of rage and frus-
tration over Respondent's conduct toward him.
However, the Administrative Law Judge found
that Respondent independently discharged Villazon
on September 27 because of this damage. Thus, the
Administrative Law Judge would deny Villazon
We hereby deny the General Counsel's motion to reject Respond-
ent's exceptions as these exceptions were timely served by mail.
2 The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
3 The Administrative Law Judge incorrectly stated that the presump-
tion of a union's continued majority status following the expiration of a
contract extends for I year. The presumption continues until it is rebut-
ted. Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe Hotel, 229 NLRB
1094 (1977), enfd. 581 F.2d 767 (9th Cir. 1978).
262 NLRB No. 150
backpay from September 27 to October 3, when
the original, unlawful discharge became effective.
The Administrative Law Judge's rationale im-
plies that the September 27 discharge was lawfully
motivated by Villazon's misconduct. We find this
implicit finding to be unwarranted. As the Admin-
istrative Law Judge properly found, Villazon's
conduct was a predictable reaction to Respondent's
flagrant denial of his rights under the Act. Villa-
zon's conduct was not calculated to cause serious
damage, nor did it. Moreover, Respondent's testi-
mony regarding the relationship between the
damage and the discharge was, as the Administra-
tive Law Judge found, "inconsistent, self-contradic-
tory and unconvincing," even as to whether the
damage incident was its motivating reason. Thus,
Respondent's president testified first that he fired
Villazon before October 3 because he was doing
"sloppy jobs . . . and he was trying to ruin my
quality work." Later he testified that he told Villa-
zon that he was letting him go because "I don't
want any more damage in my shop," and "I don't
think you want to work here anymore." Subse-
quently, he testified that he did not "exactly" tell
Villazon why he was being fired, and, still later,
that he fired Villazon because he observed that Vil-
lazon "wasn't too happy when he was working, the
workmanship he wasn't really doing properly." Fi-
nally, Respondent's president settled on the dam-
aged hinges as the reason for the discharge.
We conclude that, to the extent Respondent
claims to have relied on the damaged hinges, such
reliance is a pretext designed to allow Respondent
to escape the consequences of its prior unlawful
discharge. For, rather than taking a straightforward
position that it regarded Villazon's misconduct as
its motivation for discharging him, Respondent first
attempted to create the impression that it took Vil-
lazon's conduct as evidence that he was unhappy
and therefore should not work there anymore.
Such a concern with Villazon's job satisfaction is
patently disingenuous in view of the fact that what
had gotten under Villazon's skin by September 27,
as Respondent could hardly have forgotten, was
his imminent unlawful termination (on October 3)
pursuant to the notice it gave him earlier in the
month. The hinges incident thus provided a device
by which Respondent could accelerate and attempt
to erase the original discharge. Since it already had
manifested its intention to discharge Villazon for
unlawful reasons, we are bound to view with skep-
ticism its superimposed reason. In these circum-
sances we find irrelevant our dissenting colleague's
observation that there is no evidence that other
employees who willfully damaged property were
1188
IMPORT BODY SHOP, INC.
not discharged.4 Our dissenting colleague's further
comment that there is no evidence that Villazon
would not have been discharged even absent Re-
spondent's unlawful motivation assumes that this is
a "dual motive" case, which it is not, and inexpli-
cably places on the General Counsel the burden
which, if it were a "dual motive" case, would have
shifted to Respondent. Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083, 1089 (1980).
Applying the correct "dual motive" test (assuming,
arguendo, its applicability), Respondent has not
shown that, absent Villazon's imminent termination
pursuant to the unlawful notice of discharge, it
would have discharged him on September 27. Vil-
lazon is therefore entitled to backpay from Septem-
ber 27, 1980. The Administrative Law Judge's rec-
ommended "Remedy" is hereby amended accord-
ingly. s
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 and
hereby orders that the Respondent, Import Body
Shop, Inc., San Francisco, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
MEMBER HUNTER, concurring in part and dissent-
ing in part:
I agree with the majority in adopting the Admin-
istrative Law Judge's finding that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by solicit-
ing employees to deal directly with Respondent
rather than through the Union, and violated Sec-
tion 8(a)(3) and (1) of the Act by discharging em-
ployee Jose T. Villazon because he refused to deal
directly with Respondent rather than through the
Union. However, I disagree with their adoption of
the Administrative Law Judge's finding that Villa-
zon is entitled to reinstatement and backpay.
As the Administrative Law Judge found, Re-
spondent violated Section 8(a)(3) when it notified
Villazon on September 3, 1980, that he was dis-
4 Villazon's impulsive damaging of the hinges is not on a par with the
calculated action of the discriminatees in O. R. Cooper and Son, 220
NLRB 287 (1975). cited by our dissenting colleague. Those discrimina-
tees drove to another town late at night in order to slash 18 tires on a
company truck.
As our dissenting colleague notes. Respondent's president testified
that he paid Villazon through October 3. Our finding that Villazon is en-
titled to backpay from September 27 does not, of course, require Re-
spondent to pay him twice for the period between September 27 and Oc-
tober 3. The actual amounts due and owing are to be resolved in the
compliance stage of this proceeding.
In accordance with his dissent in Olympic Medicl Corporation, 250
NLRI 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
charged, effective October 3, 1980. On September
26, 1980, more than 3 weeks after the discharge
notice, Villazon intentionally damaged the hood
hinges of an automobile he had been assigned to
repair. Thereupon Respondent accelerated Villa-
zon's discharge date and terminated him on Sep-
tember 27. According to uncontradicted testimony
by Respondent's president, Villazon was paid
through October 3.
Contrary to the majority, I do not find Villa-
zon's conduct excusable as "a predictable reaction"
to Respondent's denial of his rights. Villazon's de-
struction of the hood hinges occurred well after he
was notified that his employment would be termi-
nated, and there is no evidence of any other action
by Respondent occurring close to the date of his
conduct which might he said to have provoked it.
In such circumstances Villazon's conduct appears
to be the result of a calculated decision to harm
Respondent by intentionally damaging a customer's
property rather than a spontaneous outburst in re-
sponse to Respondent's unlawful conduct. I also do
not find the damage caused by Villazon's conduct
insignificant. Although my colleagues find the
damage was not serious, it was significant enough
to require replacement of the hinges at Respond-
ent's expense, and Respondent had to notify the
customer's insurance company that a part not origi-
nally damaged had been replaced. Finally, contrary
to the majority, there is no evidence that any reli-
ance by Respondent on the damage to the hinges in
accelerating Villazon's discharge was pretextual.
Thus, there is no evidence that other employees
who willfully damaged a customer's property were
not discharged, or that, even absent Villazon's re-
fusal to deal directly with Respondent, he would
not have been discharged for causing such damage.
In view of these circumstances, I would find that
Villazon's conduct was sufficiently egregious to
render him unfit for further service. See O. R.
Cooper and Son, 220 NLRB 287, fn. 1 (1975). Ac-
cordingly, I dissent from the imposition of the rein-
statement and backpay remedy here.
DECISION
STATEMENT OF THE CASE
RUSSELL STEVENS, Administrative Law Judge: This
case was heard in San Francisco, California, on June 11,
19 81.' The consolidated complaint, issued on November
28, is based on a charge filed in Case 20-CA-15749 on
October 16 by Jose T. Villazon, 2 an individual, and a
charge filed in Case 20-CA-15777 on October 28 by
District Lodge No. 190, Local Lodge No. 1305, Interna-
All dates hereinafter are within 1980, unless otherwise stated.
2 Individuals are referred to herein by their last names.
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Association of Machinists and Aerospace Workers,
AFL-CIO (the Union). The (consolidated) complaint al-
leges that Import Body Shop, Inc. (Respondent), violat-
ed Section 8(a)(l), (3), and (5) of the National Labor Re-
lations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. A
brief, which has been carefully considered, was filed on
behalf of the General Counsel. Respondent filed no brief.
Upon the entire record, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material herein Respondent, a California
corporation with an office and place of business in San
Francisco, California, has been engaged in the retail
service and repair of automobiles owned by individuals.
During the calendar year 1979 Respondent, in the course
and conduct of its business operations, derived gross rev-
enues in excess of $500,000, and purchased and received
at its San Francisco, California, facility products, goods,
and materials valued in excess of $5,000 from other en-
terprises located within the State of California, each of
which other enterprises had received said products,
goods, and materials directly from places outside the
State of California.
I find that Respondent is now, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 190, Local Lodge No. 1305, Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background3
Respondent is a small automobile body repair shop
with approximately three employees. Its president is
Edward Navarro. Respondent had a collective-bargain-
ing agreement with the Union, effective from June 1,
1977, to June 1, 1980. The unit of employees covered by
the agreement was:
All journeymen, automotive mechanics, machinists,
motorcycle, electrical fender body, radiator, frame,
welders, trimmers, radio, erection and/or construc-
tion machinists and heavy duty repair men, special-
ists, apprentices, foremen, testers, tower men, dis-
patchers, service salesmen, and all other mechanics
working on automotive equipment or electrical
equipment employed by Respondent at its San
Francisco, California facility or at any industrial or
a This background summary is based on stipulations of counsel and on
credited testimony and evidence that is not in dispute.
construction job site; excluding all other employees,
office clerical employees, guards and/or supervisors
as defined by the Act.
Prior to expiration of the agreement, the Union wrote a
letter to Respondent, dated March 26, 1980, reading as
follows:4
March 26th, 1980
Tony's Imported Auto Body
120-11th St.
S.F.Ca 94118
Gentlemen:
Pursuant to the collective bargaining Agreement
presently existing between this Union and your Or-
ganization, notice is hereby given of our intention
to amend, modify and revise this Agreement.
So that negotiations will be concluded prior to the
termination of the existing Agreement, it is request-
ed that arrangements be made for negotiating meet-
ings and that you advise us, at your earliest possible
opportunity, when it will be possible to meet with
you for such purpose. Upon receipt of such notifica-
tion from you, we will submit our proposals to you
for amendments, modification and revision of the
present Agreement.
Very truly yours,
J. B. MARTIN,
Area Director
Automotive Machinists
Lodge No. 1305
JBM:rh
OPE:3:AFL-CIO(21)
On July 28 Navarro responded to the Union's letter, as
follows:
July 28, 1980
Automotive Machinist Lodge 1305
1750 Market Street
San Francisco, CA 94102
Gentlemen:
This is to inform you that due to the present busi-
ness situation, I will not be able to afford to sign the
new contract with the Union.
If you have any questions about this matter,
please contact me at 431-4606.
Very truly yours,
Edward A. Navarro
Owner
The parties never negotiated for a new contract, nor was
a new contract ever signed or agreed to.
I Navarro's denial of ever having seen this letter is given no credence.
Counsel stipulated that the return receipt for the letter was signed by Mel
Lee, Respondent's shop manager. Lee's supervisory status is not in dis-
pute.
1190
IMPORT BODY SHOP, INC.
In August 1980 Respondent's employees were Lee,
Villazon, Mike Casanova, and Ortiz (first name not es-
tablished at the hearing). Approximately in mid-August,
Navarro talked in the shop with Villazon, Casanova, and
Ortiz, all of whom were union members, told them he
could not afford the increase provided under the pro-
posed union contract, and also told them that, if he were
required to pay the increases, he probably would close
the shop. Navarro told the employees that he would not
sign a new contract with the Union, but that, if they
wanted to continue to work on his terms, they could do
so. Those terms were continuation of their then existing
wages, and benfits including a welfare plan, a pension
plan paid directly to the employees, and a dental plan.
He told the employees they would have the same bene-
fits they had under the last union contract and that, if
business improved, they would be given raises.
On September 3 Navarro wrote letters to Villazon,
Casanova, and Ortiz, reading as does the following letter
to Villazon:
Mr. Jose T. Villazon
3755 Army Street
San Francisco, CA 94110
September 3, 1980
Dear Mr. Villazon:
This letter is to inform you that due to the busi-
ness situation, we will not be able to afford to sign
the new contract with the Union.
This is also a 30 days notice so that you can look
for another job with an Union shop.
If you wish to discuss this matter, please contact
me personally.
Very truly yours,
/s/ Edward A. Navarro
Edward A. Navarro
Owner
Casanova quit his job after receiving Navarro's letter,
and went to work for a union shop. Ortiz and Navarro
came to an understanding, and Ortiz still is employed by
Respondent. Villazon told Navarro that he could not
work under the conditions offered by Navarro, and Vil-
lazon then started to look for work elsewhere in a union
shop.
On September 23 George Sanderson, a union business
representative, met with Navarro and gave him two
copies of the Union's proposal for a new contract to sup-
plant the expired agreement. The proposal provided,
inter alia, for increased wages. Either at that meeting, or
some time later, Navarro told Sanderson that business
was bad, and he could not afford to sign the Union's
proposed agreement.s
Villazon was a body and fender repairman for Re-
spondent from April 21, 1978, until September 27, 1980.
His employment largely was uneventful until the events
discussed infra. An exception was an incident in Decem-
a Navarro and Sanderson disagreed on the sequence of events concern-
ing Navarro's refusal to sign a new contract, but they agree that Navarro
refused to sign, and the discrepancies in their testimony are irrelevant.
ber 1979, wherein he was not paid for loss of employ-
ment on December 31, 1979, when the shop was closed
when he reported for work that day. Other employees
had agreed with Navarro not to work, or be paid for the
day, on December 31, 1979, but Villazon did not make
such an agreement with Navarro. Villazon complained to
Sanderson about not being paid for the day, and Sander-
son visited Navarro at the shop to discuss the matter. As
a result of their conversation Navarro paid Villazon for
the day, and he also paid the other employees for the
day of December 31, 1979.
In late September a Toyota automobile was in Re-
spondent's shop for repair of a damaged front end, and
the job was assigned by Lee to Villazon, at approximate-
ly 4 or 4:30 p.m. Soon thereafter, Lee discovered that
the car's hood hinges were damaged (this key issue is
discussed in detail infra), and he believed Villazon inten-
tionally caused the damage. Lee upbraided Villazon, and,
shortly thereafter, reported the incident to Navarro and
showed him the damaged parts. Villazon already had left
for the day, and the following morning approximately at
8 o'clock, September 27, Navarro fired Villazon. 6 Villa-
zon reported his discharge to Sanderson, who called Na-
varro on the telephone to talk about the incident. San-
derson asked if Villazon had been fired or laid off, and
Navarro replied that he had been laid off. Sanderson
asked if Villazon could apply for unemployment com-
pensation, and Navarro said yes. Villazon later applied
for compensation, but Navarro wrote to the unemploy-
ment commission and stated that Villazon had been fired
rather than being laid off, as a result of which payment
on the compensation check was stopped.7
B. Direct Dealing With Employees
Paragraph 10 of the complaint alleges that, in late July
or early August 1980, and on or about September 3,
1980, Navarro dealt directly with Respondent's employ-
ees by soliciting employees to enter into individual em-
ployment contracts.
The collective-bargaining agreement between Re-
spondent and the Union expired on June 1, 1980. There
is a presumption that the Union represented Respond-
ent's employees for a period of 1 year after expiration of
the contract, and Respondent did not rebut that pre-
sumption. During the I-year period of continued major-
ity status for the Union, it is incumbent upon Respondent
to bargain exclusively with the Union relative to wages,
hours, and all other working conditions of employees.
Any attempt within that I-year period to deal directly
with employees, rather than with the Union, relative to
wages, hours, and working conditions constitutes a viola-
tion of the Act. s
Villazon testified that Navarro never told him he was fired, but that
statement is given no credence. Villazon was not a generally credible
witness, and his contention simply is not in accord with the record, or
with Villazon's own testimony wherein he said Navarro "cancelled me
and he pay me all my money [note: meaning vacation pay and accrued
wages, as explained by Villazon]."
I This unemployment compensation matter was described by Sander-
son and Villazon. Navarro did not deny the related facts, and Sanderson
and Villazon are credited relative to this incident
* D & H Manufacturing Co., 239 NLRB 393 (1978): The Washington
Post Company, 237 NLRB 1493 (1978).
1191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Navarro acknowledged that, in August, he talked with
the three shop employees, Villazon, Ortiz, and Casanova,
and told them that they could continue to work, but
only upon his terms and without a union contract.9 Na-
varro also acknowledged talking with the same three em-
ployees later, after he wrote them letters on September
3, about entering into a personal arrangement relative to
their continued employment by Respondent.10 Finally,
Navarro acknowledged that he was successful in coming
to a personal agreement with Ortiz, who still works for
Respondent pursuant to the terms of that agreement. '
The allegations of this paragraph of the complaint are
fully supported by the record.
C. Villazon 's Discharge
Villazon, Navarro, and Lee testified to a limited extent
about Villazon's work, and the complaints, or absence
thereof,'2 concerning that work. However, that testimo-
ny is irrelevant to the issues, since Navarro testified that
Villazon's work performance had nothing to do with his
discharge; that the discharge was occasioned solely by
the matter of the damaged hood hinges, discussed infra.
Navarro testified that he fired Villazon on September
27, shortly before expiration of the 30-day notice given
in Navarro's letter of September 3, because of Lee's
report to him concerning damage to hood hinges on a
car. Villazon denied that he damaged the hinges, and
Lee described the incident. Lee testified that, after the
automobile had been in the parking lot for 2 or 3 days,
he and an insurance adjustor examined the car in detail,
and Lee mentioned to the adjustor that he was surprised
about the hinges not being damaged-he remembered the
hinges because they had been replaced by Respondent 2
months earlier as a result of another accident. The hinges
were free of defect. Immediately after the inspection, the
car was turned over by Lee to Villazon for repair, and
Lee then went into the office. Lee saw Villazon through
the office window, looking at the car but not working on
it because the workday was near the end. A little later
he heard some banging on the car and saw Villazon
doing something, which he assumed was an effort to
straighten out a part. After Villazon had the car approxi-
mately 20 minutes, he motioned for Lee to come over,
and asked, "[W]hat about the hinges?" Lee replied that
there was nothing wrong with the hinges. The hood was
up and Lee looked at the hinges. He was greatly sur-
prised to see they were damaged. A sledge hammer was
lying nearby, and the hinges were dented as if by a
chisel, and the flanges had been forced apart. Lee asked
g Navarro testified that business was bad, and that he could not afford
to sign a new agreement with the Union, but that testimony was not sup-
ported by any evidence, and is given no credence.
10 The exact dates of these conversations were not established at the
hearing, but that fact does not affect any finding, since there is no dispute
about their being within the 1-year presumptive period.
t Navarro's testimony that he did not know Respondent's collective-
bargaining agreement had an automatic renewal clause, and that he did
not know he had a continuing duty to bargain with the Union, is irrele-
vant.
1: Villazon's testimony concerning the incident about backpay in De-
cember 1979 and Navarro's alleged changes of attitude toward Villazon
and Navarro's rebuttal of that testimony are given no weight. The rel-
evance of that testimony is marginal, and of little, if any, significance.
Villazon "why did you do that?" and Villazon did not
reply. Villazon then remarked that "they're damaged,"
and Lee said, "not from any collision or impact." Lee
then left the scene, and later reported the incident to Na-
varro. A second insurance adjustor took pictures of the
damage but the hinges had to be replaced at Respond-
ent's expense.
Villazon denied damaging the hinges. Lee was a credi-
ble witness, and Villazon was not. Lee's description of
the incident is accepted as accurate, and it is found that
Villazon intentionally damaged the hinges. The General
Counsel argues that Respondent produced no documen-
tary proof of the damage, but that argument is not per-
suasive. Lee closely was observed on the witness stand,
and, although the General Counsel argues that Lee
wanted Respondent to "prevail" in these proceedings,
there was no indication that Lee was stating anything
other than the truth. Of all the witnesses who testified,
only Lee appeared to present a story with the ring of
truth about it. The relationship of the damage to Villa-
zon's discharge is another matter, discussed infra.
Navarro's testimony concerning Villazon's discharge
was inconsistent, self-contradictory, and unconvincing.
Navarro testified that he talked with Villazon early in
the morning, the day after the hinges were damaged:
A. And exactly I tell I'm sorry because I'm going
to let him go today because I don't want any more
damage in my shop and here is your check, your
vacation check, your full pay for the week or to the
3rd or whatever, you know, and there is no mean
intention to do it but I think you don't want to
work here anymore. He then want to fight with me.
He say just go outside and fight with me. I say I'm
sorry, I just give a job, I don't fight with nobody.
Q. All right. Did you tell him exactly why you
were firing him?
A. Well, not exactly.
Navarro subsequently stated that he told Villazon that
Villazon had damaged the hood hinges. At another point
in his testimony, Navarro stated, "Well, the reasons is I
fire him, you know, because I was noting he wasn't too
happy when he was working, the workmanship he
wasn't really doing properly you know." Navarro indi-
cated at one point that he did not discuss the hinges with
Villazon at the time of the discharge, but later indicated
the contrary. However, as noted supra, it appears from
the testimony as a whole, that Villazon was fired on Sep-
tember 27 because he intentionally damaged the hood
hinges.
However, Villazon was as unconvincing as Navarro.
He testified that things never were the same for him in
the shop after the incident in January 1980 concerning
the pay for December 31, and that Navarro was un-
friendly after that date. That testimony seemed self-serv-
ing and strained and is given no credence. Villazon indi-
cated that Navarro wanted to get rid of him because Na-
varro did not want any union members working for Re-
spondent, but that testimony also appeared strained and
unlikely and is not credited. Navario denied the allega-
tion. So far as the record shows, Ortiz still is a union
1192
IMPORT BODY SHOP, INC.
member. Counsel stipulated that, if recalled on rebuttal,
Villazon would deny that he asked Navarro to fight at
the time of discharge.
A principal question is whether Villazon was fired on
September 3, with a 30-day notice, or whether he was
not fired until September 27. Navarro stated unequivo-
cally, at the hearing, to his employees, and to the Union,
that he could not afford to pay increased union wages
and would not sign a new contract that included an in-
crease. Navarro acknowledged talking with the three
rank-and-file employees about working for their existing
wages, and the actions of Casanova and Ortiz are not in
dispute. Casanova quit and Ortiz worked out an individ-
ual agreement with Navarro. Villazon's testimony that
he talked with Navarro and said he could not work
under the conditions Navarro proposed is credited. Villa-
zon's testimony that he started looking for another job
after he received Navarro's letter of September 3 is cred-
ited. The letter to Villazon is clear and final-it stated,
inter alia, "This is also a 30 days notice so that you can
look for another job with a Union shop." Patently, Villa-
zon was fired on September 3, effective October 3. Na-
varro orally offered an alternative, i.e., a personal con-
tract with Villazon, but that offer was rejected. Villazon
was justified to, and did, consider the letter as a dis-
charge notice. Navarro later confirmed the discharge to
the unemployment compensation authorities.
Navarro's reason for firing Villazon is equally clear.
Navarro acknowledged that he would not sign a new
contract with the Union, and that any employee who
would not work on his terms would be fired-the letter
of September 3 and Navarro's conversations with the
employees taken together state just that. Only by relin-
quishing his ties with the Union could Villazon have re-
tained his job.' 3 Villazon refused to relinquish those ties,
as he was entitled to do. Navarro's discharge of Villazon
because of the latter's refusal to relinquish his reliance on
the Union as his bargaining agent, and his refusal to
work upon Navarro's terms, during the time when the
Union still was the representative of the shop's employ-
ees, was a violation of Section 8(a)(3) and (1) of the Act,
as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that it be ordered
"' Villazon's testimony that he received the letter of September 3 after
he refused Navarro's offer of an individual agreement is consistent with
the facts of record, and is credited
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully dis-
charged Jose T. Villazon. I will, therefore, recommend
that Respondent offer Villazon his former job or, if that
job no longer exists, to a substantially equivalent job,
without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of earnings
suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which
he normally would have earned, absent the discrimina-
tion, less net earnings during such period, with interest
thereon to be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), plus inter-
est as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977). It is recommended that backpay com-
mence on October 3, 1980, which is the effective date of
discharge given in Navarro's letter of September 3 to
Villazon. It is further recommended that Respondent
preserve and make available to the Board, upon request,
all payroll records, social security payment records, ti-
mecards, personnel records and reports, and all other
records necessary and useful to determine the amounts of
backpay due and the rights of reinstatement under the
terms of these recommendations.
As found above, Villazon intentionally damaged a pair
of hood hinges after he learned that he had been fired
and after he received Navarro's letter of September 3.
However, the damage he caused was minor, and of no
great monetary loss to Respondent. Villazon had worked
for Respondent since April 1978, and other than a few
minor matters not specifically described had been a satis-
factory and productive employee. The automobile the
hinges were on already had been extensively damaged
(the repair bill was approximately $1,300), and the addi-
tional damage caused by Villazon added but little to
what already was done. It is apparent that Villazon's ac-
tions were the result of rage and frustration, and were
not intended to harm anyone or to seriously interfere
with Respondent's business. Navarro's action in firing
Villazon because the latter refused to relinquish his reli-
ance on the Union was a flagrant denial of Villazon's
rights under the Act and was a move that inevitably
would result in anger and resentment. Villazon's simple
act of retaliation was predictable and was not adequate
basis on which to deny Villazon's reinstatement by Re-
spondent. However, the damage to the hinges was inten-
tional, and Respondent was required to pay those dam-
ages. Possibly discipline would have been forthcoming,
but for the fact that Villazon already had been fired on
September 3. In any event, the discharge of September 3
was unlawful. Had the hinge incident not occurred, Vil-
lazon would have been on the payroll until October 3.
Therefore, it is recommended that his backpay com-
mence October 3, rather than the date Villazon was fired
because of the hinges; i.e., September 27.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Import Body Shop, Inc., is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. District Lodge No. 190, Local Lodge No, 1305, In-
ternational Association of Machinists and Aerospace
Workers, AFL-CIO, is, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Since June 1, 1977, and at all times material herein,
the Union has been the exclusive collective-bargaining
representative of Respondent's employees in the follow-
ing appropriate unit:
All journeymen, automotive mechanics, machinists,
motorcycle, electrical, fender body, radiator, frame,
welders, trimmers, radio, erection and/or construc-
tion machinists and heavy duty repair men, special-
ists, apprentices, foremen, testers, tower men, dis-
patchers, service salesmen, and all other mechanics
working on automotive equipment or electrical
equipment employed by Respondent at its San
Francisco, California facility or at any industrial or
construction job site; excluding all other employees.
office clerical employees, guards and/or supervisors
as defined by the Act.
4. Respondent violated Section 8(aX3) and (1) of the
Act by discharging Jose T. Villazon because he refused
to deal directly with Respondent rather than through the
Union.
5. Respondent violated Section 8(aX5) and (1) of the
Act by soliciting employees to deal directly with Re-
spondent rather than through the Union.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 4
The Respondent, Import Body Shop, Inc., San Fran-
cisco, California, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Dealing directly with its employees in the appro-
priate bargaining unit by soliciting employees to enter
into individual employment contracts.
(b) Discharging any appropriate unit employee because
the employee refused to deal directly with Respondent
rather than through the Union.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
" In the event no exception are filed as provided by Sec. 10.46 of
the Rules and Regulations of the National Labor Relatioen Board. the
findings, conclusions, and recommended Order herein shall, a provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objectiont thereto
shall be deemed waived for all purpose.
2. Take the following action necessary to effectuate
the policies of the Act:
(a) Offer Jose T. Villazon immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for his loss of earnings in the manner set forth in
"The Remedy" section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records neces-
sary to compute the backpay and reinstatement rights set
forth in The Remedy section of this Decision.
(c) Post at its San Francisco, California, facility copies
of the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by its authorized
representative, shall be posted by Import Body Shop,
Inc., immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Import Body Shop, Inc., to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
I" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a 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, as amended, and has or-
dered us to post this notice.
WE WILL NOT violate Section 8(aX3) and (1) of
the National Labor Relations Act by discharging
employees because they refuse to deal directly with
us rather than through their Union.
WE WILL NOT violate Section 8(aX5) and (1) of
the Act by soliciting employees to deal directly
with us rather than through their Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collec-
tively through representatives of their own choos-
ing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual
1194
IMPORT BODY SHOP, INC.
aid or protection as guaranteed by Section 7 of the
Act, or to refrain from any or all such activities.
WE WILL offer Jose T. Villazon immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and make him whole for his loss of
earnings, with interest.
IMPORT BODY SHOP, INC.
1195