Marin Dodge, Inc.

National Labor Relations Board - Board DecisionsOct 12, 1973

206 N.L.R.B. 370 (N.L.R.B. 1973)

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marin Dodge, Inc.; Francisco Dodge Center , Inc. and Nick Shmatovich Marin County Lodge No. 238 International Associa- tion of Machinists and Aerospace Workers, AFL- CIO and Nick Shmatovich . Cases 20-CA-7585 and 20-CB-2687 October 12, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent Employer, Marin Dodge, Inc.; Francisco Dodge Center , Inc., San Rafael, Cali- fornia, its officers , agents, successors , and assigns, shall take the action set forth in the said recommend- ed Order. DECISION STATEMENT OF THE CASE On May 31, 1973, Administrative Law Judge Mar- tin S . Bennett issued the attached Decision in this proceeding . Thereafter , the General Counsel and Re- spondent Employer filed exceptions and supporting briefs. 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, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 MARTIN S. BENNETT, Administrative Law Judge: This mat- ter was heard at San Francisco , California, on April 3, 4, and 5 , 1973. The amended complaints, issued March 28, 1973, and based upon charges filed by Nick Shmatovich, an individual , on June 27, 1972 , and March 27, 1973 , allege that Respondent Employer, Marin Dodge , Inc., herein Ma- rin, and Francisco Dodge Center, Inc., herein Francisco, has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, and that Respondent Union, Marin County Lodge No. 238, International Associ- ation of Machinists and Aerospace Workers, AFL-CIO, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act . Briefs have been submitted by the General Counsel and Respondents. Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: ORDER Pursuant to Section 10(c),of the National Labor Relations Act, as amended , the National Labor Rela- FINDINGS OF FACT I JURISDICTIONAL FINDINGS i The meeting referred to in sec. III, D, (8), of the Administrative Law Judge's Decision actually took place on February 10 rather than February 20 as stated. The Respondent Employer and General Counsel have 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 respect 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, enfd . 188 F 2d 362 (C.A. 3, 1951 ). We have carefully examined the record and find no basis for reversing his findings 2 in its exceptions the Respondent Employer contends that this Board should defer to the decision reached by the Board of Adjustment pursuant to the contract between it and the Respondent Union . The Administrative Law Judge refused to defer on the ground that the unfair labor practice aspects of the case were not presented to that board . We also note that while the evidence as to the 8 (b)(1) allegations of the complaint was not deemed sufficient by the Administrative Law Judge to support a finding of a violation of the Union's duty fairly to represent the Charging Party, there is nonethe- less evidence of some friction and animosity between the Union and the Charging Party, arising in part out of past differences and in part out of some foot-dragging by the Union in pursuing Shmatovich 's grievance , a reluctance by the Union to make full and free disclosure to the grievant of the Employer's letter detailing the reasons for his termination , a misunderstand- ing, at the very least, between Shmatovich and the business agent concerning the matter of subpenas for witnessess ; and other circumstances which cast serious doubt as to whether Shmatovich 's and the Union's interests were fully aligned and even cast some shadow over the fairness of the proceeding. Under all of these circumstances , we are not persuaded that it would effectu- ate the policies of the Act for us to rest content with the results of the arbitration proceeding here , and we are of the view that this is an appropriate case for the exercise of our jurisdiction Marin Dodge , Inc., a California corporation , was en- gaged in the retail sale and repair of new and used cars at San Rafael , California, until January 1, 1973 . On that date, Francisco Dodge Center, Inc., a Delaware corporation, as- sumed that business with identical equipment and person- nel at the same location . It is undisputed , and I find, that Francisco is a successor to Marin. During the calendar year 1972, Mann enjoyed gross reve- nues in excess of $500,000 and received goods and supplies valued in excess of $50 ,000 directly from suppliers located outside the State of California. From January 1 through February 28, 1973, Francisco enjoyed gross revenues in the amount of $485,412, which project in excess of $500,000 per annum . During the same period, it purchased and received goods and supplies valued in excess of $10,000 directly from suppliers located outside the State of California, which pro- ject in excess of $50,000 per annum . I find that the opera- tions of Respondent Employer affect commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Marin County Lodge No. 238, International Association of Machinists and Aerospace Workers, AFL-CIO, is a la- 206 NLRB No. 87 MARIN DODGE, INC. 371 bor organization within the meaning of Section 2(5) of the Act. HL THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues; Background The General Counsel alleges, in the case against Respon- dent Employer, that Nick Shmatovich, the charging party, was discharged on or about January 26, 1972, because of his union concerted activities, this within the meaning of Sec- tion 8(a)(3) and (1) of the Act. In the case against Respon- dent Union, it is alleged that the latter did not thereafter fulfill its duty of fair representation in processing a griev- ance resulting from the discharge of Shmatovich, this within the meaning of Section 8(b)(1)(A) of the Act. It is deemed in order to set forth at this point certain language in the current contract between Respondent Em- ployer as a member of Marin County Motor Car Dealers, Independent Garage Owners and Parts Houses, and Re- spondent Union covering mechanics working at the time material herein. The arbitration clause in that agreement provides that any differences not previously adjusted are to be referred to the business representative of the Union and the Employer for adjustment. All complaints relating to dismissals must be filed with the Employer in writing within 10 working days. If a settlement is not reached within 5 working days, the matter is then submitted to a board of adjustment. The latter consists of two members appointed by the Employer and two members appointed by the Union. If a majority of these appointees do not agree upon a settle- ment within 5 working days, a neutral chairman is then selected by the four members and these five constitute a board of arbitration with final and binding authority. As treated below, the discharge of Nick Shmatovich was heard by a four-man board of adjustment and unanimously resolved adversely to him. Under Spielberg Manufacturing Company, 112 NLRB 1080, the Board will defer to an arbitrator's award under certain specified circumstances. The General Counsel has directed attention to an added criterion, much in point with the instant problem, where the court approved a holding that the Board may look behind an award when the arbitrator did not treat with the alleged unfair labor practice aspects of the case or where they were not presented to him. John Klann Moving and Trucking Com- pany v. N.L.R.B., 411 F.2d 261 (C.A. 6, 1969), cert. denied 396 U.S. 833 (1969). B. The Case Against Respondent Employer Nick Shmatovich was hired as a journeyman mechanic by Marin in September 1969 at the prevailing union scale. Shortly thereafter, either in January or February 1970, he was granted an increase of 15 cents per hour above union scale, this due to his superior ability. It is undenied that at the time of his discharge that he was the only mechanic enjoying wages above union scale. Indeed, a witness for Respondent Union herein, and also a union appointee to the board of adjustment, Richard Gommeringer, testified that it is rare for one to be paid over union scale and that this generally stems from superior ability as a mechanic. According to Shmatovich's uncontroverted testimony, and I so find, he was active in the affairs of Respondent Union. He was elected as president of the local in February 1971 and served in that capacity until approximately 2 weeks before his discharge on January 26, 1972. It would seem that the catalyst that precipitated his discharge was the hire of a new service manager by management, one Darrell Abernathy, in December 1971; the latter was the immediate supervisor of Shmatovich. The General Counsel relies herein upon a number of incidents involving Shmatovich and Abernathy, directly or indirectly, which, it is urged, constitute Section 7 protected activities. These allegedly were the true factors motivating Respondent in the discharge of Shmatovich on January 26, 1972; on that date, a towel rack was torn from the wall in the men's room by Shmatovich, deliberately or unavoidably according to the parties, and the General Counsel alleges that this was seized upon by Abernathy as a pretext for ousting Shmatovich from the shop. Shmatovich, on this record, and as he appeared before me, was manifestly an outspoken person, but this does not detract from his protected status under Section 7 of the Act if he has engaged in activities thereunder. The following incidents are relied upon by the General Counsel: (1) As noted, Abernathy was hired as service manager in December 1971. Later that month, Shmatovich approached him and complained that a lubrication man, not a member of the Union but under Teamster jurisdiction, was perform- ing work in violation of the contract between Respondent and the Union. Abernathy, according to Shmatovich, re- plied this was of no concern to the latter. Of direct interest herein, as well as below, is the claim of Shmatovich that Shop Steward Clyde Robinson was ineffectual and some- what unwilling to process matters of this nature. (2) While not a matter of the greatest moment, the con- tract between the parties provides that paychecks are to be delivered prior to 2 p.m. on Friday. According to Shmato- vich, he went to Abernathy on Friday and complained about late delivery of the checks. Abernathy allegedly re- plied that, as the men were paid regularly, there should be no concern about late paychecks. This practice of late pay- checks allegedly continued regularly until the time of the discharge of Shmatovich. Abernathy admittedly was aware of the complaint; he claimed that on one such occasion the checks were distributed at 2:05 p.m. (3) According to the uncontroverted testimony of Shma- tovich, and I so find, at the beginning of January 1972, he was off sick for 5 days. The contract provides that after 2 days of illness, absent hospitalization, one is entitled to sick pay up to 5 days. Upon his return, Shmatovich asked Aber- nathy about his sick-pay check and the latter replied that he would take care of it. One day later, Shmatovich repeated his inquiry. Abernathy responded that he had not gotten around to the matter; Shmatovich had not been at work, and that there was no reason for him to be paid. Shmatovich thereafter displayed the sick leave provisions of the contract to Abernathy and insisted that he had this sum coming. Abernathy was visibly upset, stated that he would look into the matter, and, that Friday, Shmatovich received his sick- pay check; this was about 2 weeks prior to his discharge. (4) On Monday, January 24, Shmatovich went to Aber- 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nathy with another grievance. Employee Ron Davis had worked on Sunday, January 16, allegedly installing smog control devices; that Davis had mentioned this to Shmato- vich is uncontroverted. The basis of the Shmatovich gripe was that the contract provided that all overtime work was to be distributed equally to all members of the shop with double time for Sunday work, and this was not being done. Abernathy denied that Davis worked on Sundays, but con- ceded that this was possible. He claimed that, because of the distance he l1ved from the shop, he never visited it on Sun- day. But a General Counsel's exhibit denotes that a car registered to Abernathy received a smog control device from Davis on Sunday, January 16) (5) According to Shmatovich, he also complained on the foregoing occasion that Respondent was violating a section of the contract in that overtime work was given to only one of the three members of the body shop, rather than being spread around; -lie claimed that this had_been put to him by the other two men in the body shop and that he duly relayed this to Abernathy. This, of course, ties in with the evidence that Shop Steward Robinson was ineffectual or nonopera- tive in areas as this. Several days before his discharge, Shmatovich was called to the office of Len Huston, the owner of Respondent. The latter, according to the uncontroverted testimony of Shma- tovich, and I so find, discussed shop problems with him, in essence the various matters that Shmatovich had previously raised with Abernathy. That this rankled Abernathy is shown by his subsequent testimony before the board of adjustment that Shmatovich, when he believed that some- thing was wrong in the shop, would go to the men or to Huston rather than to Abernathy. Turning to the key incident of January 25, the testimony of Shmatovich and employee Royce Johnson is in substan- tial agreement. They were in the upstairs restroom at noon. There are two towel dispensers on one wall and a third on another. The latter towel dispenser, for some time, had been difficult to operate. It is a type which contains a long cloth towel that,circulatesion two rollers and the clean portion is exposed when one pulls the towel downward. This particu- lar dispenser did not function well and it was necessary to jerk hard on the towel to move it down. Over a period of time, the four screws which held the dispenser to the wall had become loose and, as a result, the dispenser sagged from the wall. As Johnson put it, he entered the employ of Respondent approximately I month earlier on December 27 and, as of that date, the towel dispenser was difficult to operate and was loose from the wall. On this particular occasion, Shma tovich pulled on the towel dispenser and it fell from the wall to the floor. In Johnson's observation, Shmatovich was not angry or upset at the time. Abernathy presented a vastly different version of the inci- dent. He and Shmatovich allegedly met in his office at 4 p.m. that day concerning the manner in which Shmatovich conducted himself in the shop. Shmatovich, in turn, flatly denied that such a'meeting took place. Abernathy claimed that about 30 minutes later, at ap- 1 This, of course , is not inconsistent with Abernathy having left the vehicle in the shop. proximately 4:30 p.m., Shop Steward Clyde Robinson in- formed him that the towel dispenser had been torn from the wall. Robinson had not seen or heard the incident, but reported that Shmatovich was the only person remaining upstairs at the time. Without any investigation, Abernathy decided to terminate Shmatovich, immediately telephoned Business Representative Bevan of the Union, and so ad- vised him. On the morning of January 26, Shmatovich re- ported for work and was asked by Abernathy if he had torn off the towel dispenser. Shmatovich denied this, stating that it had fallen from the wall. Abernathy then stated that he had had it with Shmatovich and that the latter was fired. He advanced no other reason, although he stated that Bevan had an entire file of complaints about Shmatovich. In a subsequent letter to the Union, Abernathy not only adverted to the towel dispenser incident, but advanced a number of other alleged reasons for the discharge. Xis clear, and I find, however, that, but for the towel dispenser inci- dent, Shmatovich would not have been discharged on Janu- ary 26. I credit the testimony of Shmatovich and Johnson as to the timing of the incident at noon and as to the circum- stances thereof. Johnson, it may be noted, was the most neutral of all involved herein. I also find that Shmatovich had not been in the office of Abernathy prior to the towel incident.2 Abernathy seized upon the explanation presented by Robinson and decided forthwith to discharge Shmato- vich without any investigation and prior to talking with the man, despite his admitted knowledge that the dispenser rack was loose. The record amply demonstrates that Shmatovich was zealous to safeguard the rights of the men covered by the contract. He did not fare well with the shop steward whom he, as well-as others, considered to be ineffectual. While the subsequent letter to the Union and the later hearing raised a number of areas of disenchantment with Shmatovich, none of these had been taken up with him, save for the towel incident. The testimony of James Johnson, the predecessor of Ab- ernathy, contains nothing but praise for the ability of Shma- tovich and confirms the passiveness of Steward Robinson. This, of course, is reflected in the fact that Shmatovich was the only mechanic paid above the union scale and even Abernathy rated him as a good mechanic. While Shmato- vich was zealous, and his appearance before me confirms this, his conduct did not approach a stage of insubordina- tion which would appropriately render him subject to disci- pline. In a postdischarge letter to the Union, Abernathy re- ferred to Shmatovich as a "chronic instigator." I conclude on this record that this refers to his insistence that Respon- dent abide by the terms of the contract. And the towel incident occurred directly after Shmatovich complained to Abernathy about the allotment of overtime work and his talk with the owner, Huston. In addition, I find, according to the uncontroverted testimony of Royce Johnson, that immediately after the discharge Abernathy spoke with the men. He told them that he had just gotten rid of one man 2 Abernathy, no longer with Respondent, was a vague witness whose recol- lection in a number of areas was most faulty; this was in marked contrast to his specific testimony before the board of adjustment while he was still in the -employ of Respondent Employer MARIN DODGE, INC. 373 he had been wanting to fire since he , Abernathy, came to the shop, that he could fire any man in the shop, that the Union would back him up, and that the men would have to shape up. I find, on a preponderance of the evidence, that the reason assigned on January 26 for the discharge of Shmatovich was pretextual. I further find that he was dis- charged because of his union and concerted activities within the meaning of Section 8(a)(3) and (1) of the Act. C. The Board of Adjustment Proceeding Shmatovich promptly grieved over his discharge under the contract and the case was heard on February 22, 1972, by a four-man board of adjustment. What was litigated on that occasion was, in essence , a six-count statement from Abernathy as to the reasons for the "disciplinary" termina- tion of Shmatovich. This is reflected in a letter sent to the Union after the discharge. The reasons are, in essence, (1) he did not wish to abide by shop rules despite repeated warnings and reprimands; (2) he chose to underrate the service department and voiced low opinions thereof in front of the public, department heads, and coworkers; (3) he used profanity at work in the presence of both the public and coworkers; (4) he could not get along with his coworkers unless he had the "upper hand" in all decisions and his attitude toward department heads was insulting; (5) when reprimanded or asked to do something, he would lose con- trol of his temper and would throw about objects such as tools; and (6) the towel dispenser incident, alleging that this resulted from a temper tantrum , this causing considerable property damage. Abernathy contended in the letter, as he did here, that the last incident occurred after a conversation in his office, at which time Shmatovich stormed out. Aber- nathy also described him as a chronic instigator who was forever "riling up" other employees. As is readily apparent, none of these items were discussed on January 26 with Shmatovich, except for the towel dis- penser incident. The board of adjustment unanimously up- held the discharge. The 37-page transcript of this hearing, not all testimony , is in evidence and is silent as to any union or concerted activities on the part of Shmatovich, as hereto- fore set forth. The testimony was directed substantially to items other than the towel dispenser which was adverted to briefly .3 As for the towel dispenser incident, Robinson testified that he did not see it pulled from the wall, but saw it on the floor at approximately 4:35 p.m. Abernathy testified about the extent of the damage to the wall. He asked Shmatovich about the incident, and the latter allegedly contended that it fell off when he dried his hands . Robinson testified that he had seen Shmatovich in Abernathy's office, but his later testimony is in essence that he was uncertain as to the day. In Spielberg Manufacturing Company, supra, the Board indicated that it would defer to an arbitration award where (1) the proceedings were fair and regular; (2) all parties 3 It is interesting to note that Shop Steward Clyde Robinson, who testified extensively against Shmatovich at the February 22 hearing, contended that the predecessor of Abernathy , Jim [Johnson], had trouble with Shmatovich. This is diametrically contradicted by the testimony of Johnson described above. agreed to be bound; and (3) the decision was not repugnant to the purposes and policies of the Act. The General Coun- sel has directed attention to John Klann Moving and Truck- ing Company v. N.L.KB., supra. As noted, the court there approved a holding that the Board may look behind an arbitrator's award where the latter did not consider the specific factor which resulted in the unfair labor practice. And, in Airco Industrial Gases-Pacific, a Division of Air Reduction Company, Incorporated 195 NLRB 676, an em- ployee who was discharged, allegedly for poor work, claimed that it was based upon his union activity. The dis- charge was upheld in arbitration, but the Board refused to defer to the award because the issue of employer discrimina- tory motive was not resolved in the arbitration. See also Fleet Distributing Service, Inc., 200 NLRB No. 35. As set forth, the hearing before the board of adjustment revolved almost entirely around the allegations about the poor work of Shmatovich, his temperament, and other hab- its. I find, therefore, in agreement with the General Counsel, that the concerted or union activity issues were not litigated by the parties; the Board, therefore, should not defer to the decision of the board of adjustment. D. The Case Against Respondent Union The General Counsel has alleged that Respondent Union (1) mishandled the grievance of Shmatovich and (2) breached its duty of fair representation because of his inter- nal union activities , all this within 'the meaning of Section 8(b)(1)(A) of the Act. As an initial premise, it is settled that a labor organization violates its duty of fair representation when it is guilty of bad faith in handling a grievance for a member or treats it in an arbitrary or perfunctory manner. Vaca v. Sipes, 386 U.S. 171 (1967) 4 The General Counsel has also urged the applicability of Retana v. Local 14, Apartment, Motel, Hotel and Elevator Operators Union, 453 F.2d 1018, 1023 (C.A. 9, 1972), and Griffin v. United Automobile Workers of America, 469 F.2d 181 (C.A. 4, 1972). In the former case, the Ninth Circuit decreed that there was a "broad and demanding" duty to pursue a course of action that was not unreasonable and arbitrary, indepen- dently of any hostile motive. And, in the latter case, the court found fault, without any motive, when a grievance was pursued with the person who had discharged the griev- ant. The General Counsel has adduced in detail the following evidence in support of his position: (1) Shmatovich was president of Respondent Union from February 1971 until approximately 2 weeks prior to his discharge on January 26, 1972. He claimed that during this period he clashed with Business Representative Bevan as to who would chair meetings relating to contract negotiations. (2) According to Shmatovich, he questioned certain ex- penses of Bevan incurred on a trip to Montana on union business for which Bevan produced no receipts . Bevan testi- fied that he had no recollection of the incident. (3) Shmatovich allegedly complained to Bevan about 4 Although in that case , the Court found no fault on the part of a labor organization which decided not to take a grievance to a fifth step of arbitra- tion. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD late paychecks and the use of the lube man in the shop. After conferring with Service Manager Abernathy, Bevan, according to Shmatovich, told him that Abernathy denied any violation of the contract. (4) Bevan was tardy in filing the grievance resulting from the discharge of Shmatovich and allegedly did not do so until prodded by a letter dated February 4 from an attorney retained by Shmatovich. This letter is in evidence. (5) On February 8, Shmatovich finally obtained from Bevan the information that a letter had been received from Respondent Employer detailing the reasons for his dis- charge; the content of this letter, dated January 26, has been set forth above. (6) According to Shmatovich, at a general membership meeting of Respondent Union on February 10, he asked to see the above letter and Bevan replied that, on advice of counsel , he could not show it to him. (7) On February 16, according to Shmatovich and his wife, they met with Bevan at the office of Respondent Union. Again, on advice of counsel, according to Shmato- vich, Bevan advised him that he could read the letter but could not make notes or copy it or take it from the room. According to Bevan, he had previously been advised by counsel in other cases never to give out any information until after the grievance hearings. (8) At the February 20 general membership meeting, Be- van advised Shmatovich that he had appointed Recording Secretary Richard Coleman of the Union and Richard Gommeringer as the two union representatives on the Board. Shmatovich testified that he objected on the basis that he wanted to participate in the selection of the two union representatives and, more particularly, to the choice of Coleman. According to Shmatovich, he and Coleman had "political differences" and Coleman, as recording sec- retary of the Union, opened mail directed to President Shmatovich of the Union. According to Bevan , Coleman had sat upon a number of such boards in the past, he knew of no frictidn between Coleman and Shmatovich, and Gom- meringer was a knowledgeable shop steward who attended union meetings. (9) Shmatovich and his wife claim that Bevan assured them that they could "subpoena" witnesses and they later learned otherwise. Needless to say, such a power does not exist . According to Mrs. Shmatovich, the word subpoena was used and not the word summons. According to Bevan, he told Shmatovich that if the case went to the ultimate stage of arbitration (with the fifth neutral member present) he would have the right to subpoena witnesses. (10) According to Shmatovich, he had previously asked employees Royce Johnson and Bill Cross to testify in his behalf. They responded that they would do so only pursuant to a subpoena. (11) The General Counsel points to the testimony of Be- van that he did not inform Board Member Coleman of the objection of Shmatovich to his serving on the board until after the hearing. Coleman's testimony lends itself to a find- ing that this could have either been before or after the hearing. (12) The hearing was postponed several times . According to Shmatovich, he telephoned Bevan early on the morning of February 22 and discovered for the first time that the hearing was to be held that very day. (13) The General Counsel stresses that at the February 22 hearing Shmatovich had to share a copy of the charges against him with a representative of the Employer. The transcript reveals that the latter clearly proffered this to him and, further, that Bevan proffered his copy and that both were available to Shmatovich. (14) The General Counsel has stressed that Shmatovich wished two witnesses, Johnson and Cross, to testify in his behalf on the afternoon of the hearing. Bevan asked Aber- nathy, who was returning to the shop, to so advise them. Abernathy did so; the two men asked if they were required to appear; Abernathy replied in the negative and they opted against it. According to Bevan, this is par for the course for employees who generally do not wish to become involved. It may well be inferred that they were either reluctant to antagonize their employer or, on the other hand, to present testimony adverse to Shmatovich. In behalf of Respondent Union, the transcript of the earlier hearing demonstrates that Shop Steward Robinson presented grievous testimony against Shmatovich. That he did so cannot be faulted against Respondent Union because the simple answer is that Respondent Employer relied upon his testimony. Moreover, the transcript reveals that Bevan, probably aware of the nature of Robinson's testimony, moved that he be excluded from the hearing until he testified and this was done. The General Counsel has attempted to attach opprobri- um to Respondent Union in that there was a reference at the hearing to an earlier incident involving Shmatovich. But the transcript readily discloses, as I read it, that Bevan stop- ped and successfully confined the issue to those matters raised by Respondent Employer in its letter of January 26 and restricted the scope of the hearing. In addition, Shmatovich, an alert and manifestly an intel- ligent witness before me, defended himself quite well at the board of adjustment hearing , as is reflected in the transcript. Indeed, as before me, he was a most articulate participant. It is also noteworthy, as Bevan uncontrovertedly testified, that there had been some 40 hearings of this nature in recent years under the contract and that no grievant has ever at- tempted to select a union representative to appear on the Board. While the case is not entirely free from doubt, I believe that Business Representative Bevan, although perhaps somewhat negative to Shmatovich, did not unfairly repre- sent him at the board of adjustment hearing. Indeed, the transcript reveals that it was a somewhat loosely held infor- mal proceeding with Shmatovich, as stated, well and articu- lately defending himself. I find, in view of the foregoing, that Respondent Union has not engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. See Szczesny v. Montgomery Ward & Co., 83 LRRM 2041 (C.A. 7, 1973). Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Marin Dodge, Inc.; Francisco Dodge Center, Inc., is MARIN DODGE, INC. 375 an employer within the meaning of Section 2(2) of the Act. 2. Marin County Lodge No. 238, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Nick Shmatovich for engaging in union and concerted activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Marin County Lodge No. 238, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, has not engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. THE REMEDY Having found that Respondent Employer has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It has been found that Respondent has violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging Nick Shmatovich. I shall, therefore, recommend that Re- spondent offer him immediate and full reinstatement to his former job, or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. I shall further recommend that Respondent make him whole for any loss of earnings he may have suffered as a result of his discharge by payment of a sum of money equal to that he normally would have earned from said date to the date of Respondent's offer of reinstatement, less net earn- ings, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: straining, or coercing employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act, except to the extent such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Nick Shmatovich immediate and full reinstate- ment to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to sen- iority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the discrimination against him in the manner, provided above in the section entitled "The Remedy." (b) Preserve and make available to the National Labor Relations Board and its agents, upon request, for examina- tion and copying, all payroll records, social security pay- ment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Order. (c) Post at its premises at San Rafael, California, 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 Respondent, shall be posted by it immediately upon receipt thereof and be main- tained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 6 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX ORDER5 Respondent, Marin Dodge, Inc.; Francisco Dodge Cen- ter, Inc., San Rafael, California, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activity in behalf of, Marin County Lodge No. 238, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or any term or condition thereof. (b) In any like or related manner interfering with, re- NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Nick Shmatovich immediate and full reinstatement to his former job, or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileg- es, and we will make him whole for any loss of wages suffered as a result of our discrimination against him. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in, or activity in behalf of , Marin County Lodge No. 238, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of our em- ployees, by discharging employees , or by discriminat- ing in any manner , in regard to hire or tenure of employment or any term or condition thereof. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the rights guaranteed under Section 7 of the Nation- al Labor Relations Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment , as authorized by Section 8(a)(3) of the Act. Dated By INC (Employer) MARIN DODGE, INC FRANCISCO DODGE CENTER, (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 13018 Federal Building, Box 360 47, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-0335.