Patrick Plaza Dodge, Inc.

National Labor Relations Board - Board Decisions

May 23, 1974

210 N.L.R.B. 870 (N.L.R.B. 1974)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patrick Plaza Dodge, Inc. and Local Lodge 598 of the
International Association of Machinists and Aeros-
pace Workers, AFL-CIO. Case 9-CA-7871
May 23, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 28, 1973, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a reply to Respondent's exceptions and a brief
in support of the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.
ORDER
issues , and to engage in oral argument . Subsequent to the
close of hearing , a timely brief was filed by counsel for the
General Counsel.
Upon the entire record in this case , and from my
observation of the witnesses , and their demeanor on the
witness stand , and upon substantial , reliable evidence
"considered along with the consistency and inherent
probability of testimony" ( Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Patrick Plaza Dodge, Inc., is a Delaware corporation
engaged in the retail sale and service of new and used
automobiles and the wholesale distribution of automobile
parts and supplies at its Charleston, West Virginia, place of
business. During the 12-month period immediately preced-
ing the issuance of the complaint, Respondent had a direct
inflow of goods and products valued in excess of $50,000,
which goods it purchased and caused to be shipped directly
in interstate commerce to its Charleston, West Virginia,
place of business from points located outside the State of
West Virginia. During the same period, the Respondent
realized a gross retail sale of products and services in
excess of $500,000. The parties admit, and I find, that the
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Patrick Plaza Dodge,
Inc., Charleston, West Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was tried before me on September 24 and 25, 1973, at
Charleston, West Virginia, and is based upon a charge filed
by Local Lodge 598 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, hereinaft-
er referred to as the Union, on June 29, 1973, upon the
complaint, issued on August 22, 1973, by the General
Counsel for the National Labor Relations Board, herein-
after referred to as the Board, against Patrick Plaza
Dodge, Inc., hereinafter referred to as the Respondent or
the Company, alleging violations of Section 8(a)(1), (3) and
(5) and Section 2(6) and (7) of the National Labor
Relations Act, as amended (61 Stat. 136), and upon an
answer timely filed by the Respondent denying the
commission of any unfair labor practices.
At the hearing , all parties were represented by counsel,
and were afforded full opportunity to examine and cross-
examine witnesses , to introduce evidence pertinent to the
II. THE LABOR ORGANIZATION INVOLVED
Local Lodge 598 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether, in granting certain benefits to its service
department employees, on January 23, 1973, the Respon-
dent did so in order to discourage union activity in
violation of Section 8(a)(1) of the Act.
2. Whether, in discharging employees Carroll Hager,
Thomas McDowell, Robert Morris, and David Michael
Spangler on January 19, 1973, the Respondent did so for
discriminatory reasons in violation of Section 8(a)(3) of the
Act.
3. Whether, should the above issues be resolved against
the Respondent, such conduct is sufficient to undermine
the majority status of the Union, warranting the finding of
a Section 8(a)(5) violation and compelling the issuance of a
bargaining order.
B. Facts
In its service department on January 19, 1973, the
Respondent, owned and managed by Harold Kearns,
employed 22 employees, 9 or 10 of whom were mechanics.
Of these, seven were line mechanics or flat rate mechanics
who did repair work on customers' cars , one was a used car
210 NLRB No. 141
PATRICK PLAZA DODGE , INC. 871
mechanic, and another was a new car mechanic who
prepared new cars for delivery.
On Wednesday, January 17, three of Respondent's
employees, Carroll Hager, David Spangler, and Clifford
Mitchell, drove to Harvey Shreve Ford, a dealer in nearby
St. Albans, whose service department employees were on
strike. The three mechanics approached the picket line and
talked with the pickets, inquiring as to whether they had
any union cards. The following morning, Thursday,
January 18, as promised, two of the Harvey Shreve
employees showed up at the Respondent's facility, entered
through the automobile exit door, walked through the shop
to the body shop, and asked for Hager. Hager met with the
two Harvey Shreve employees in the body shop and
procured from them a small supply of union cards. As
there were not enough cards, Hager arranged to get more
cards from the Harvey Shreve employees during the lunch
break that day. Hager, Spangler, and Mitchell signed cards
and passed out additional cards which were signed that
morning.
At noon, Hager, along with four or five other employees,
and George Allen, secretary-treasurer of the Respondent,
drove to lunch. On the way, Hager pulled up and stopped
in front of a parked car behind the K-Mart Shopping
Center. Hager got out, walked back to the other car,
handed one of the two Harvey Shreve employee occupants
the 10 cards that had been signed that morning, and
obtained an additional supply of cards from him. Hager
put the cards in his pocket, returned to his car, and the
group went on to lunch. That Thursday afternoon between
I and 5 p.m. back at the shop, the additional cards were
passed out by Hager, Spangler, and Mitchell. Some were
signed that afternoon, and others returned the following
morning, Friday. At lunchtime on Friday, January 19,
Hager, Spangler, and Mitchell drove to the South Charles-
ton office of James Copenhaver, the union business
representative. As Copenhaver was not in, Hager slid an
additional five signed cards under the office door.
At the end of the workday on Friday, as employee
checks were being passed out, six employees were told that
they should remain, that Al Billings, Respondent's service
manager, wanted to talk with them. Thereafter, one by one,
the six service department employees were called into the
office and discharged.'
Mechanic Carroll Hager, who specialized in automatic
transmissions and differentials, and who had been with the
Respondent the full 4 years and 7 months since it came
into being, was told by Billings that he hated to tell him,
but that he had to let him go. In reply to Hager's question,
Billings told him that at the time that the factory man was
in he had been goofing off too much,2 that he had not been
putting out enough, and that on Wednesday he had taken
all day on a brake job for Perry Aliff, and that he had
spilled his guts to the factory man. Billings told him that
i Five of these were alleged in the complaint as dtscnmmatees, namely,
Carroll Hager, Thomas McDowell, Robert Lee Moms, David Michael
Spangler who goes by his middle name, and Donald Young, all of whom
had signed union authorization cards the day before At the close of the
General Counsel's case, upon motion of the Respondent, unopposed by the
General Counsel, the complaint was amended to delete Donald Young as
an alleged discnmmatee.
2 The "factory man" in question , hereinafter alluded to in more detail, is
Gill said that he had to let him go. Hager protested that he
had to send the rotors out to have them turned and that
that was why it took so long on the brake job. Billings said
that Hager still took too long on the job. Ten days later, on
Monday evening, January 29, Kearns called Hager and
offered him his job back. Hager, the only discriminatee
recalled, went back to work on Thursday, February 1.
Michael Spangler, a mechanic who, like Hager , specializ-
ed in transmission and differentials, and who had been
employed by the Respondent continuously since 1969,
when called into the office, was also told by Billings that he
hated to tell him, but that he was terminated. When
Spangler asked why, Billings told him "You haven't been
punching a time clock and you haven't been putting out
enough work." Spangler thanked Billings and left.
Thomas McDowell, who had been with the Company
since November 1971, and was employed as the service
salesman and work dispatcher, followed Spangler into
Billings' office. Billings told McDowell he would have to
let him go, that the mechanics had spilled their guts to the
factory analyzer and had told him that he (McDowell) was
not getting their work out right, was not assigning the work
right, and was making too many mistakes on the factory
warranty claims.
Robert Morris, the new car mechanic who prepares new
cars for customers, when called in was told by Billings that
he had some bad news for him. When Morris indicated
that he had figured it out, Billings said he was sorry, he did
not know why and had no reason for it, that he knew that
Morris had always done his job, but that he had been told
to terminate him, and that there was nothing else he could
do. Morris told Billings that if he had to do it, he had to do
it, and that he had no hard feelings toward him.3
The following Tuesday, January 23, the Respondent, by
printed notice, announced to its employees that effective
January 25, it was increasing the hourly rate of mechanics'
pay, paying all uniform rentals , increasing paid vacations
from 1 week to 2 weeks, and providing tool insurance
coverage on mechanics' tools.
On this same date, January 23, having in his possession
15 signed union cards that had been turned over to him by
Hager and Spangler, Business Representative Copenhaver
met with a number of the Respondent's employees, and
discussed the company's termination of six employees that
had occurred the Friday before. By letter dated January
29, the Union advised the Company that it represented a
majority of its service department employees, offered to
submit proof of its majority status upon request, asked that
the Company recognize and bargain with it on behalf of its
employees, and sought an early date for negotiations. As of
the date of the instant hearing, the Union had received no
response from the Respondent.
Bruce Gill, a Chrysler service analyst, who made an appraisal of the
Respondent 's operations on Tuesday, Wednesday. and Thursday of the
week in question
3 The above findings as to the discharge conversations are based upon
the unrefuted testimony of each of the dtscnmmatees . Billings , the only
company official charged with the responsibility of apprising the employees
of their terminations , was called by the Respondent on surrebuttal only and
testified on a very limited rebuttal matter unrelated to these conversations.
$72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ANALYSIS AND CONCLUSIONS It is most difficult to even determine Kearns' version of
the entire matter, except for the fact that, in order to
borrow money to bring up the capitalization of the
dealership, he had been told by Chrysler Motor Corpora-
tion that he would have to make changes in his operation,
that early in 1972 he had requested a service review team to
come in and tell him what was wrong, and that, finally, on
January 16, 1973, Bruce Gill arrived on the scene for such
purpose, and left at the end of the workday on January 18.
Other than the fact that Gill talked with a few of the
employees, including Hager, there is no evidence as to
specifically what he did during this period, what the results
were, or to what extent, if any, he discussed personalities
with Kearns. The testimony of Kearns is contradictory on
this.6 At various points, Kearns testified that he made the
decision to discharge the employees several months before
January 19, toward the end of December, a week before
Gill arrived, and later, after Gill arrived and during a
discussion with Gill on Thursday morning before he
(Kearns) left on a business trip to Akron. In any event,
Kearns did leave Thursday noon, accompanied by Caron
Lopinsky, his new car manager, apparently without saying
anything to anybody or leaving any instructions concern-
ing the employees. The following Friday morning, at 8:30
a.m., according to Kearns, he telephoned George Allen, his
secretary-treasurer and head of the office, and told him to
hold the payroll, that he was going to have to make some
changes. Kearns then told Allen who was to be discharged,
apparently instructing him to apprise Billings of the
decision and of the names of employees to be terminated.
Kearns, when asked by counsel on the stand as to whether
he had discussed these terminations with Billings, testified
only that "It had been discussed actually for the previous 3
months ... .
While Kearns vacillated all over the place in attempting
to answer direct questions as to why each man was fired,
his explanations differed in many instances with the
reasons given the employees by Billings. In the case of
Hager, Billings had told him that he was discharged
because he had not been putting out enough, that he had
taken too long on a brake job that Wednesday, and that he
had spilled his guts to Gill. Kearns, on the other hand,
testified that he had made the decision to terminate Hager
long before Gill's visit. While it is true, by Hager's own
admission, that during the prior couple of months he had
not been producing as he should and that there had been a
loosening up in the work habits of the shop employees
generally, the fact remains that Hager, along with
Spangler, were the two top producers in the shop and that
during the 10-day period that Hager was discharged,
transmission work apparently was being sent out.
As to Spangler, in addition to telling him that he had not
been punching the timeclock, Billings told Spangler that he
was being terminated because he had not been putting out
enough work. Kearns, on the other hand, testified that
the complaint allegations . Thus, Kearns was the only witness to testify for
the Respondent's case-in-chief
6 While, as hereinafter noted, Kearns testified at one point or another as
to his alleged reasons for terminating each of the discrimmatees , with one
minor exception, there is no indication that the specifics as to each man was
discussed with or by Gill that morning , or any other time
The General Counsel contends that the Respondent
became aware of the union activity among his employees,
and, in order to discourage and undermine this union
activity , discharged the four discriminatees and granted
increased benefits to its remaining service department
employees . The General Counsel further contends that in
view of the fact that the Union clearly represented a
majority of Respondent's service department employees on
January 19, by the totality of such conduct the Respondent
violated Section 8(a)(5) of the Act negating the possibility
of a fair election and warranting the issuance of a
bargaining order.
Counsel for the Respondent, in denying the complaint
allegations and pleading a lack of company knowledge of
union activity prior to January 29, asserts "the termina-
tions were based on observation and study over a
substantial period of time, and the thing that brought them
about was a visit from the service representative from
Chrysler Motor Corporation . . ., that because of ineffi-
ciencies and problems which (were) pointed out by the
service representative, the discharges were then made." 4
Before discussing what I consider to be the crux of the
entire case, it is factually undisputed, and the record is
clear , that there is no direct evidence of company
knowledge of the union activities or sentiments of the
alleged discriminatees, or independent evidence of union
animus on the part of the Respondent. It is also apparent,
and I find, that the Respondent is, and in fact during most
of its entire existence has been , undercapitalized, ineffi-
ciently managed, and in a very poor, if not crucial,
financial condition. Thus, but for the timing of the events
involved, it would appear that these facts alone establish a
failure on the part of the General Counsel to make out a
prima facie case . For reasons hereinafter expressed,
however, I find not only that such is not the case, but,
moreover, that the Respondent has failed in its burden to
rebut.
The Respondent's case , in my opinion, falls on the
testimony of one man, Harold Kearns, president and
general manager.5 Kearns is the one person responsible for
the overall operations of the Company, the one person
responsible for the decision to make the employee
terminations , and the one person to whom one should be
able to look for an explanation of the Respondent's actions
herein . Unfortunately, the entire testimony of Kearns,
contained on some 70 transcript pages, is most confusing,
contradictory, and of little probative value. Kearns, often
failing to heed instructions of both counsel and of the
Administrative Law Judge, throughout seemed bent upon
emphasizing the poor financial condition of his Company,
and was continually evasive in answering questions,
particularly when pressed on crucial matters concerning
the timing of, and explanation for, the discharges.
4 Counsel for the Respondent at no time alluded to the benefits'
allegation or the Respondent 's refusal to recognize the Union.
S Bruce Gill, the Chrysler service analyst who allegedly played a major
part in the determination, and company official, George Allen, rode in the
car with the union adherents during the noon hour at which union cards
wre exchanged , were not called as witnesses , and did not testify As noted
w W. Al Bilheg., although called on rebuttal, did not testify as to any of
PATRICK PLAZA DODGE, INC. 873
Spangler was discharged not because he was unproductive,
but rather because Spangler was going to leave shortly
anyway to go into his own business.
As to Morris, Kearns testified that he was discharged
because the Company had had numerous complaints
involving small adjustments of customers' cars, and
because there might have been a problem bonding him.
The inconsistency here is found in the fact that Billings, in
discharging Morris, told him he did not know why he was
being discharged, and, corroborative of Morris who
testified that he had never had any complaints about his
work, that he knew that Morris had always done his job.
As to a potential bonding problem, the problem in Morris
being bonded, whatever it might have been, had been
noted on his employment application when he was hired
by the Respondent on a previous occasion, and the
Respondent rehired him in 1971 with knowledge that there
might be this bonding problem.
Finally, as to McDowell, whose job it was to write orders
on repair work for customers' cars and to assign work to
the mechanics, Billings told him that the reason for his
termination was because the mechanics had spilled their
guts to Gill, telling Gill that he was not assigning their
work right and was making too many mistakes on the
factory warranty claims. The Respondent adduced no
evidence to refute McDowell's testimony that he had
received no complaints concerning the assignment of work.
Kearns testified at length, however, concerning the
tremendous losses in the thousands of dollars which the
Company had been sustaining over many months due to
warranty claims not being honored by Chrysler.? The main
reason advanced by Kearns for such losses was that the
Company could not supply proof to Chrysler of its having
performed the work. While, as it turned out, there is no
question but that the Respondent had a very big problem
in this regard, one apparently involving a rather extensive
practice of falsifying such claims,8 Kearns testified only
that McDowell was discharged because his work was
unsatisfactory. Yet, as testified to by McDowell, at no time
during the entire year of 1972 did anyone advise McDowell
that he was improperly filling out warranty forms or that
the Company was losing money because of it. And,
notwithstanding these tremendous losses , which were
admittedly jeopardizing his dealership, Kearns, in answer-
ing counsel 's question as to whether McDowell had been
spoken to about this, testified only that "I suppose he was
told that they had to be done better, to be done right ......
and admitted that he had not spoken to McDowell, that he
"had no reason to." Thus, all four of these service
department employees were discharged on January 19,
with no real prior warnings of dissatisfaction on the part of
management or advanced notice or indication that such
was to happen, and notwithstanding the assertion of
Kearns at one point in his testimony that his decision to
fire them had been made months before.
7 In this regard , warranty work on customers ' cars is performed by the
Respondent' s mechanics , the latter being paid for their work by the
Company, and the Company, in turn, filing its warranty claim with Chrysler
seeking authorization and reimbursement.
B This appeared to have come as a surprise to Kearns at the hearing.
9 1 specifically discredit Kearns as to his denials of discriminatory
conduct with respect to these discriminatees , and generally discredit him to
I am of the opinion, and so find , that, under all of these
circumstances , and particularly Kearns' inconsistent,
contradictory, and inherently implausible explanation for
its decision to terminate each of the four discriminatees,
the Respondent's avowed reasons were pretextual .9 Having
so found , I further find that an inference is warranted that
the discharges of all four were motivated by their union
activity. While fully cognizant of the fact that there exists
no direct evidence of the Company's knowledge as to their
union activity , it is well established that the element of
knowledge may be proved by circumstantial evidence from
which a reasonable inference may be drawn . Here, all four
employees signed union authorization cards on January 18,
the day before their discharge. Two of these, Hager and
Spangler, were the primary organizers responsible for
securing the union cards and for obtaining signatures of 15
of the 21 shop employees. The union activity for the most
part, including the initial delivery of union cards by
Harvey Shreve pickets and the distribution and signing of
these cards, was carried on in the Respondent's shop
during work hours on January 18.i0
It would also appear highly unlikely that Allen, the
company official riding to lunch with the employee union
adherents on January 18, did not become inquisitive as to
why Hager parked the car momentarily behind the K-Mart
Shopping Center , got out , approached another parked car,
and returned to drive on to lunch. Notwithstanding
Hager's testimony that there was no union discussion
during lunch and that to his knowledge Allen was not
aware of what was happening , I find the latter hard to
believe.
Finally, during Gill's conversation with Hager, Spangler,
and a third employee, on Wednesday, January 17,
concerning shop conditions and problems , one of the
employees apprised Gill that Harvey Shreve's men were
out on strike and ventured the opinion that employees of
other auto dealers in town want union shops. All of the
above constitute avenues by which the Respondent could
well have learned of the union activity of its employees.
These factors, coupled with the pretextual reasons for
discharge advanced by the Respondent, warrants an
inference of company knowledge of such activities."
While the union activity of Morris and McDowell appears
to have been confined to their signing union cards, the fact
that they signed cards the same day as did Hager and
Spangler, the two union leaders, and were discharged for
pretextual reasons at the same time as Hager and Spangler
were terminated for pretextual reasons, justifies the
imputation of knowledge of their union sympathies.12
In light of the entire set of circumstances surrounding the
discharge of these four employees, and notwithstanding the
lack of independent evidence of union animus , I find that
such animus did in fact exist and supplied the unlawful
motivation giving rise to the Respondent 's decision to
terminate . Accordingly, I find, as alleged in the complaint,
the extent that his testimony is at variance with other of my findings herein.
10 Hager's testimony to the effect that he was careful not to be observed
by management does not alter the fact that this was a small shop and that
the possibility existed that he and others could have been seen.
ti See N L.R.B. v. Wal-Mart Stores, Inc., 488 F .2d 114 (C.A. 8, 1973).
enfg. 201 NLRB 250, and cases cited therein.
12 McElrath Poultry Company, Inc., 206 NLRB No. 94.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, on January 19, 1973, the Respondent discriminatorily
discharged Carroll Hager, Thomas McDowell, Robert Lee
Morris, and David Spangler, in violation of Section 8(a)(3)
and (1) of the Act.
That the Respondent, having rid itself of 5 of the 15
union card signers in his service department,13 took
additional steps to further discourage union activity among
its employees is revealed, I find, by the fact that on
January 23, the second workday after the terminations,
Kearns announced several increased employee benefits. In
addition to increasing the hourly rate of mechanics'
customers labor and warranty labor, the Respondent
announced that the Company would pay all uniform rental
costs (in the past it had paid one half of the uniform rental
expenses), that it was increasing annual paid vacations
from I to 2 weeks, and that it would provide tool insurance
coverage on mechanics' tools.
The Respondent's position on this announcement, as
asserted by Kearns' confusing testimony pertaining there-
to, is that the decision to make these changes in benefits
had been made the prior December, at the same time that a
decision was made to eliminate the weekly $185 guaran-
teed wage for mechanics. Kearns, however, advanced no
credible reason for not announcing these benefit changes
on January 2 at which time he did announce the
Respondent's decision to eliminate the weekly guarantee.
Had, in fact, the decision been made at the time asserted
by Kearns, it would seem logical that he would have made
the increased benefits known at the same time he was
deleting another. Further, the fact that the Respondent had
in fact provided tool insurance coverage since 1971, and
chose to list it as an additional increase in benefits along
with the others, would tend to support the General
Counsel's contention that the January 23 announcement in
this regard was intended to further discourage union
activity on the part of the service department employees.
In the absence of any evidence, other than Kearns' self-
serving and less than credible testimony, to support the
assertion that the decision to make such changes had been
made much earlier, I find that, in announcing the increased
employee benefits on January 23, the Respondent did so
for the unlawful purpose of discouraging union activity in
the shop, and that by such conduct the Respondent
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
Turning to the refusal to bargain allegation of the
complaint , and the General Counsel's assertion that the
Respondent's total conduct herein warrants the issuance of
a bargaining order, a brief resume of the pertinent facts
reveals that, on January 17, 1973, at the commencement of
the Union's organizing efforts, the Respondent employed
22 employees in its service department,14 and that by noon
on January 19, 15 of these employees had signed union
authorization cards authorizing the Union to act as their
collective-bargaining agent. Thus, at this point the Union
represented a clear majority of `Respondent's employees in
the appropriate unit.15 By close of business on this same
date, January 19, the Respondent had fired five of the card
signers. Thereafter, on Janiiiit^y 29, the Union asserted its
majority status and requested that the Respondent recog-
nize the Union and bargain with it on behalf of its
employees.
At no time has the Respondent replied to the Union's
demand, nor does the record reflect the Respondent's
reason for refusing to recognize the Union or to engage in
bargaining. In fact, the refusal to bargain matter was not
even alluded to during the hearing by the Respondent. I
find, consistent with the assertion of the General Counsel,
that the circumstances present in this case warrant an
order requiring the Respondent to bargain with the Union
notwithstanding that no representation election has been
conducted.16 By discriminatorily discharging the four
discriminatees on January 19 and granting the increased
benefits to the remaining shop employees on January 23, I
find that the Respondent engaged in conduct designed to
undermine the majority status which the Union had on
January 19. Thus, it is concluded that, by refusing the
Union's bargaining demand and engaging in such unfair
labor practice conduct, the Respondent violated Section
8(a)(5) and (1) of the Act, and, as such conduct has
negated the possibility of conducting a fair election among
Respondent's employees, that a bargaining order is
necessary and appropriate to protect the majority selection
of the Union and otherwise to remedy the violations
committed.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following: 17
CONCLUSIONS OF LAW
1. Patrick Plaza Dodge, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local Lodge 598 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By granting benefits to its service department
employees in order to discourage union activity and
membership, the Respondent interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act in violation of Section
8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of Carroll Hager, Thomas McDowell, Robert
Lee Morris, and David M. Spangler, thereby discouraging
membership in and activity on behalf of a labor organiza-
tion, the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
5. All service department employees at the Respon-
13 In addition to the four discnmmatees herein , a fifth card signer,
Donald Young , was also terminated on this date.
14 1 find , as alleged , that all service department employees at Respon-
dent's Charleston, West Virginia, facility, excluding office clerical employ-
ees, salesmen , and professional employees, guards and supervisors as
defined in the Act, and all other employees , constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the
Act.
15 The Respondent does not attack the authenticity of any of these cards,
and does not deny that the Union represented a majority of its employees
16 N L. R. B v Gissel Packing Co., 395 U S. 575 ( 1969).
11 Consistent with my findings herein , I hereby deny the Respondent's
motion to dismiss the complaint made at the close of the Respondent 's case-
in-chief
PATRICK PLAZA DODGE, INC. 875
dent's Charleston, West Virginia, facility, excluding office
clerical employees, salesmen, and professional employees,
guards, and supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act
6. Since January 19, 1973, the Union has been, and is
now, the exclusive representative of all employees in the
appropriate unit within the meaning of Section 9(a) of the
Act.
7. By failing and refusing, at all times since January 29,
1973, to bargain collectively with the Union as the
exclusive representative of the employees in the appropri-
ate unit, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
IV. THE EFFECT UPON COMMERCE OF THE UNFAIR
LABOR PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
It having been found that the Respondent discriminato-
rily discharged Thomas McDowell, Robert Lee Morris,
and David M. Spangler on January 19, 1973, thereby
violating Section 8(a)(3) and (1) of the Act, it is recom-
mended that the Respondent offer the above-named
individuals immediate and full reinstatement to their
formerjobs, or, if their jobs no longer exist, to substantially
equivalent positions, without prejudice to any rights and
privileges to which they are entitled, and make them whole
for any loss of pay they may have suffered by reason of the
discrimination against them, by making payment to them
of a sum of money equal to the amount they would have
earned from the earliest date of the discrimination to the
date of the offer of reinstatement, less net earnings during
said period to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, and including the payment of
interest at the rate of 6 percent per annum to be computed
in the manner set forth by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716. It having been found that the
Respondent discriminatorily discharged Carroll Hager on
is 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
January 19, 1973, thereby violating Section 8(a)(3) and (I)
of the Act, and thereafter offered him reinstatement to his
old job on January 29, 1973, it is recommended that the
Respondent make him whole for any loss of pay he may
have suffered by reason of the discrimination against him
during this period, in the manner described above. In this
regard, it is further recommended that the Respondent
preserve, and upon request, make available to the Board or
its agents for examination and copying, all payroll records
and reports, timecards, and all other records necessary to
compute the amount of backpay.
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:
ORDER 18
Respondent, Patrick Plaza Dodge, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting benefits to its service department employees
in order to discourage union activity and membership in
violation of Section 8(a)(1) of the Act.
(b) Discouraging membership in, and activity on behalf
of, Local Lodge 598 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization, by discharging or refusing to
reinstate any of its employees, or in any like manner
discriminating in regard to the hire or tenure of employ-
ment, or any term or condition of employment, in violation
of Section 8(a)(3) and (1) of the Act.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
(d) Refusing to bargain collectively with Local Lodge
598 of the International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive bargaining
representative of all employees in the appropriate unit
described above in violation of Section 8(a)(5) and (1) of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Thomas McDowell, Robert Lee Morris, and
David M. Spangler immediate and full reinstatement to
their former jobs, or if their jobs no longer exist, to
substantially equivalent positions without prejudice to any
rights and privileges to which they are entitled, and make
them and Carroll Hager whole, in the manner and
according to the method set forth in the section entitled
"the Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records and
reports, timecards, and all other records necessary to
compute the amount of backpay due under the terms of
this recommended Order.
(c) Upon request, bargain collectively with Local Lodge
598 of the International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive represent-
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.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ative of the employees in the appropriate unit, and embody
in a signed agreement any understanding reached.
(d) Post in conspicuous places at its Charleston, West
Virginia, facility, including all places where notices to
employees are customarily posted, copies of the attached
notice marked "Appendix." 19 Copies of the notice, on
forms provided by the Regional Director for Region 9,
shall, after being duly signed by an authorized representa-
tive of the Respondent, be posted by it, as aforesaid,
immediately upon receipt thereof, and maintained for at
least 60 consecutive days thereafter. Reasonable steps shall
be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
19 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
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT grant benefits to our service depart-
ment employees in order to discourage union activity
and membership.
WE WILL NOT discharge or refuse to reinstate, or
otherwise discriminate against, our employees in order
to discourage membership in, or support of, Local
Lodge 598 of the International Association of Machin-
ists and Aerospace Workers, AFL-CIO, or any other
labor organization.
WE WILL NOT in any like manner interfere with,
restrain , or coerce our employees in the exercise of their
Section 7 rights.
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive bargaining representative of our
employees.
WE WILL offer Thomas McDowell, Robert Lee
Morris, and David M. Spangler, immediate and full
reinstatement to their former jobs, or if their jobs no
longer exist, to substantially equivalent positions
without prejudice to any rights or privileges to which
they may be entitled, and will make them and Carroll
Hager whole, for any loss of pay they may have
suffered by reason of our discrimination against them.
WE WILL, upon request, bargain collectively with
Local Lodge 598 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, as the
exclusive representative of our employees in the
appropriate unit, and put into a signed agreement any
understanding reached. The appropriate unit should
consist of
All service department employees of Patrick
Plaza Dodge, Inc., at its Charleston, West
Virginia location, excluding office clerical em-
ployees, salesmen , and professional employees,
guards and supervisors as defined in the Act.
All our employees are free to become or remain or
refrain from becoming or remaining members of Local
Lodge 598 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor
organization, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959.
Dated By
PATRICK PLAZA DODGE,
INC.
(Employer)
(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 directed to the Board's Office,
Federal Office Building , Room 2407, Suite 3003, 550 Main
Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.