Placke Toyota, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1974

215 N.L.R.B. 395 (N.L.R.B. 1974)

PLACKE TOYOTA, INC 395
Placke Toyota, Inc. and District No. 9, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 14-CA-7814
December 9, 1974
DECISION AND ORDER
.t1
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On June 27, 1974, Administrative Law Judge John
M. Dyer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and Respondent filed a reply
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, findings,' and
conclusions of the Administrative Law Judge except as
modified below.
We agree with the Administrative Law Judge that
Respondent did not violate Section 8(a)(5) and (3) of
the Act and that these allegations of the complaint
should therefore be dismissed. We disagree, however,
with his conclusion that Respondent did not violate
Section 8(a)(1) by its involvement in the employees'
decertification petition.
The facts are not materially in dispute and are accu-
rately set forth in the attached Decision.' Briefly, em-
ployee Whalen asked Shop Foreman Williams' about
getting rid of the Union, and he advised Whalen to
contact the National Labor Relations Board. There-
after, Whalen asked Williams if the latter could have
someone type up a decertification petition from a hand-
written copy which Whalen had prepared. On Wil-
liams' request, one of the office girls, using Respon-
dent's letterhead stationery,' typed the petition and
put it on Williams' "order" desk; i.e., the desk used by
him to distribute work orders to the employees and by
them to return and leave their completed job orders.
i 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 respect to credibil-
ity 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 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge states Williams' title as "shop foreman"
and the parties refer to him as "Service Manager " Whatever his correct
designation may be, it is not disputed that he is a supervisor within the
meaning of the Act
3 There is no indication that the typist was instructed to use Respondent's
letterhead for this purpose, and we assume for purposes of this decision that
she did so inadvertently
Whalen later came by, signed the petition, and left it on
the desk, saying that he would let the other men know
about it.
The petition remained on the supervisor's order desk
for several days, during which time other employees
signed it. At least two of the men, Blanton and Babb,
signed it in Williams' presence. Although it is not en-
tirely clear whether Williams asked Babb to sign the
petition,' the evidence does establish, as the Adminis-
trative Law Judge found, that he did not "urge" Babb
to do so. The record is also clear that, after a number
of the employees had signed, Williams asked Babb to
file the document with the Board and when Babb
refused Williams said he would ask Whalen to do
this.'
Although an employer does not violate the Act by
referring an employee to the Board in response to a
request for advice relative to removing a union as the
bargaining representative,' it is unlawful for him
subsequently to involve himself in furthering employee
efforts directed toward that very end. Thus, an em-
ployer's solicitation, support, or assistance in the initia-
tion, signing, or filing of an employee decertification
petition interferes with the employees' Section 7
rights.7
Here Respondent did not initiate the decertification
petition or "urge" employees to sign it, but it did lend
more than minimal support and approval to the secur-
ing of signatures and the filing of the petition. Thus, if
Respondent's activity had been limited to answering
Whalen's inquiry about how to eliminate the Union by
directing him to the Board, we would find no violation.
However, Respondent put its imprimatur upon the pe-
tition at the very outset by permitting it to be circulated
as a company document after being typed on Respon-
dent's letterhead. And, Respondent continued to give
the petition its open support-or at least the clear im-
pression of open support-by alowing it to remain for
several days on Supervisor Williams' desk. Finally, ap-
parently after all employees had signed the petition,
Williams asked Babb to file it with the Board and in-
dicated he would ask Whalen to do so, thereby assisting
in forwarding the completed petition to the Board.'
In view of the foregoing, we find that Respondent's
conduct in connection with the decertification petition
interfered with and coerced the employees in the free
4 As noted by the Administrative Law Judge, Babb testified very reluc-
tantly about the petition and disputed some of the statements in his affidavit
given to the Board agent Thus, he testified that Williams did not tell him
to sign the document but that he could do so if he wished, whereas in his
affidavit Babb stated that Williams had said he wanted Babb to sign
5 It is not clear from the record whether Williams persuaded Whalen to
file the document with the Board
6 KONO-TV-M,ss,on Telecasting Corporation, 163 NLRB 1005, 1006
(1967)
7 Dayton Blueprint Company, Inc, 193 NLRB 1100, 1107-08 (1971);
Inter-Mountain Dairymen, Inc, 157 NLRB 1590, 1609-13 (1966)
8 KONO-TV-Mission Telecasting Corporation, supra
215 NLRB No. 66
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of their rights guaranteed in Section 7,9
thereby violating Section 8(a)(1) of the Act.10
REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative action
designated to effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Placke
Toyota, Inc., St. Louis, Missouri, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing em-
ployees in the exercise of their Section 7 rights by rend-
ering assistance and support to an employee petition to
decertify the International Association of Machinists
and Aerospace Workers, AFL-CIO, District 9, as their
bargaining representative.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Toyota facility in St. Louis, Missouri,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for Region 14, after being duly signed
by an authorized representative of the Respondent,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 14, in
9 Our dissenting colleague seeks to legitimize Respondent's conduct on
the ground that the petition was initiated by employee Whalen and Wil-
liams' activities were merely in response to Whalen's requests This ignores
the impact upon other employees of the fact that the petition was typed on
Respondent's letterhead, was allowed to remain on Williams' desk in full
view of all comers, and that Williams asked Babb to file the document with
the Board While employees are, of course, guaranteed freedom of choice
in selecting or retaining a bargaining representative , as the dissenting opin-
ion indicates, the protection of this freedom is not assigned by the statute
to employers, and it is precisely from such employer interference that the
statutory protection is afforded
10 Inter-Mountain Dairymen, Inc, supra, and Dayton Blueprint Co, Inc,
supra
11 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that in all other respects the
complaint herein be, and it hereby is, dismissed.
CHAIRMAN MILLER, concurring in part and dissenting in
part:
I concur in all of my colleagues findings and conclu-
sions, except that I would find, in accord with the
Administrative Law Judge, that Respondent's conduct
relative to the decertification petition was merely an
accommodation to employee Whalen's requests and
did not constitute a violation of the Act. In my view,
the mere typing of a document at an employee's request
falls far short of that kind of "interference, restraint,
and coercion" which is proscribed by Section 8(a)(1) of
the Act.
It is even a greater stretching of the scope of the Act
to find the leaving the petition on the order desk, sim-
ply as a matter of convenience to the employees who
used this desk to bring back completed work order
forms, worthy of condemnation by this Federal agency.
And when Williams, knowing the intended destination
of the petition-the NLRB-suggested it be taken
there for filing, he was doing no more than suggesting
an implementation of the freedom of choice which is
supposed to be guaranteed by our statute. Accordingly,
rather than straining to find grounds for reversing the
Administrative Law Judge below, I would affirm his
commonsensical decision, and accept his recommenda-
tion to dismiss the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
Section 7 of the Act gives all employees the right:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection and
To refrain from any or all of these things.
WE WILL NOT give assistance and support to an
employee petition to decertify the International
Association of Machinists and Aerospace Work-
PLACKE TOYOTA, INC.
ers, AFL-CIO, District 9, as their bargaining
representative.
WE WILL NOT in any like or related manner inter-
fere with , restrain or coerce employees in the exer-
cise of their rights under Section 7 of the Act.
PLACKE TOYOTA, INC
DECISION
STATEMENT OF THE CASE
JOHN D. DYER, Administrative Law Judge: On February
20, 1974,1 District No. 9, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, herein called
the Union or Charging Party, filed a charge alleging that
Placke Toyota, Inc., herein called the Company, Employer,
or Respondent, violated Section 8(a)(1), (3), and (5) of the
Act.
In a complaint issued by the Acting Regional Director on
April 9, it was alleged that Respondent violated Section
8(a)(1) by statements of its service manager, Bob Williams,
to employees in December, January, and February, informing
them that the Company did not have a union in its service
department, telling an employee not to join the union, stating
that the Employer was attempting to get the Charging Party
removed from its status as a bargaining agent , and urging
employees to sign a petition for decertification which was
filed with the Board. It alleged the discharge of John Lydon
as violative of Section 8(a)(1) and (3) and that Respondent
had violated Section 8(a)(5) by not signing an agreed-upon
contract between Respondent and the Union and by refusing
to remit to the union dues, initiation fees, and other monies
due under the contract and further that the Company unilat-
erally instituted its own insurance program for unit em-
ployees who were covered under a union-sponsored program
contained in the contract. Additionally, it was alleged that
Respondent refused to discharge employees who by the con-
tract terms had a duty to join the Union.
Respondent's timely answer admitted the requisite service
and commerce allegations, the supervisory status of Service
Manager Bob Williams and President Don Placke, and the
appropriateness of its unit set forth in the complaint, but
denied that it had violated the Act in any way. Respondent
amended its answer at the trial of this case, admitting that it
had discharged and refused to reinstate Lydon on or about
January 25, and pled affirmatively that the Union did not
represent a majority of Respondent's employees at any rele-
vant time. The General Counsel amended the complaint to
add as violative of Section 8(a)(1) that Service Manager Wil-
liams, during February, had interrogated an employee as to
whether he had met with an agent of the National Labor
Relations Board and that Williams had told an employee not
to meet with a Board agent. The amendment also alleged that
in April, President Placke coerced an employee by calling
him a troublemaker because the employee participated in an
unfair labor practice charge filed against Respondent.
There are serious conflicts in the testimony of the wit-
nesses In assessing credibility I have relied on the witnesses'
testimony, some demeanor and some objective facts and I
I Unless specifically stated otherwise, all events herein took place during
latter 1973 or early 1974
397
have concluded that the General Counsel has not carried the
burden of proof and that the complaint in this matter must
be dismissed.
At the trial of this matter, in St. Louis, Missouri, on May
7, all parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally.
General Counsel and Respondent have filed briefs which
have been carefully considered. On the entire record in this
case, including my evaluation of the reliability of the wit-
nesses, based on the evidence received and my observation of
their demeanor, I make the following:
FINDING OF FACT
I BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent is a Missouri corporation maintaining its place
of business in St . Louis, where it is engaged in the retail sale
and distribution of new -and-used automobiles and related
products . During the past year, Respondent derived gross
revenues in excess of $500 ,000 from the retail sale of new-
and-used automobiles and purchased and received Toyota
automobiles , parts, and other goods and materials valued in
excess of $ 50,000 , directly from points outside the State of
Missouri.
Respondent admits and I find , that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act
Respondent admits and I find, that the Union herein is a
labor organization within the meaning of Section 2 (5) of the
Act.
11 THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Mr. Placke operated an automobile dealership in 1971,
which sold both Chevrolet and Toyota automobiles and at
that time had a contract with the Charging Party covering the
service department employees located at that one site. In
1971 the Toyota sales and service organization was segre-.
gated and moved to its present location on South Kings High-
way. At that time, Mr. Timmerberg, a representative of the
Charging Party, approached Mr. Placke who agreed to sign
a contract running through July 31, 1973, covering the me-
chanics in the Toyota service department. This contract was
admittedly signed by Mr. Placke in January 1972, with a
reservation according to Placke not contained in the exhibit.
Respondent is not a member of the Greater St. Louis Au-
tomobile Dealers Association but is referred to as an in-
dependent.
Mr. Placke testified that in August 1973, he had become
concerned as to whether the mechanics were going to go on
strike because there was a deadlock between the Union and
the members of the Greater St. Louis Automobile Dealers
Association regarding a new contract and he spoke to his
mechanics and received assurances from them that they were
not planning to strike. According to Placke's testimony, at
least two of the then three-man unit told him they had no
interest in being represented by the Union, that it could do
them no good, with one stating he would not join the Union.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One of the two men who testified did not recall the conversa-
tion. The third man stated that he,would not strike but would
leave if Respondent were picketed.
In the summer and fall of 1973, there were three shop
mechanics-,and a shop foreman who wrote service orders.
Shop foreman Sheppard and one of the mechanics left Re-
spondent that fall and in November 1973, Bob Williams
became the shop foreman and service order writer. In addi-
tion to Babb and Blanton who had been employed by Re-
spondent for 3 and 2 years, respectively, new employees
Whalen, Chandler, and Morgan were hired in latter 1973 and
early 1974.
Around December 15, 1973, John Lydon's father, a per-
sonal longtime friend of Mr. Placke, sought work for his son
saying he had some trouble keeping a job and needed work.
Placke, after interviewing John Lydon for a short while, in-
troduced him to foreman Williams who said he did not have
work right then but would look for work for him. On Decem-
ber 19, Lydon was hired as a temporary employee to work for
3 weeks or so on used cars which needed mechanical repairs.
B. Disputed Facts
Marvin Timmerberg , the union representative , stated that
about August 15, he went to Respondent's place of business
with two companions, spoke briefly with the men in the shop
stating that he was going to try to get Respondent to sign an
agreement to raise their wages pending negotiations with the
Greater St Louis Automobile Dealers Association and that
if Respondent agreed to sign such an interim document there
would be no necessity for them to go on strike. The General
Counsel 's brief notes that Timmerberg 's affidavit states that
the two men accompanied Timmerberg to Placke's office but
were not close enough to hear the conversation . Placke's
office was described as being about 6 by 8 feet with a 5-foot
glass wall Such a room would have made any voice audible
to anyone in the room or close to it.
According to Timmerberg , he talked to Mr. Placke who
stated that he would not sign the proffered agreement (G.C.
Exh. 4) without striking through paragraph 3, which would
make the pay increase of 35 cents retroactive to August 1, and
would provide for acceptance of any increase above 35 cents
and any increase of fringe costs including retroactivity and
would provide for continuation under the terms of the ex-
pired contract. Timmerberg 's testimony was that Placke
stated that he would give the men a 35-cent raise but would
make it a guarantee of 35 cents and would not raise it or lower
it, depending on the outcome of the negotiations between the
union and the Automobile Dealers Association . It should be
noted that the second paragraph of the exhibit was not
stricken , and it would have allowed a reduction if the final
settlement with the St. Louis Dealers Association was less
than 35 cents. This remaining in throws some doubt on the
reasons Timmerberg said Placke gave.
Timmerberg testified that after striking through the third
paragraph Placke signed the agreement and he went out and
told the men that Placke had signed it . There was testimony
that he showed the agreement to Union Steward Blanton with
a signature and the stricken third paragraph . However, Blan-
ton's affidavit to the NLRB while stating that Timmerberg
showed him a signed agreement states further that Timmer-
berg said that Placke refused to sign the agreement and the
last (3rd) paragraph was scratched out
Don Placke testified specifically that he told Timmerberg
he would not sign any document; that he had talked to his
men and they had told him that they would not support a
union strike and apparently did not want the Union and he
was not about to sign any document that would bind him to
the Union for another term. He specifically denied that the
signature on the agreement was his, stating that he never
signed that agreement on that or on any other day.
This document and two other documents that Don Placke
had admittedly signed were received in evidence. Neither
General Counsel or Respondent produced any handwriting
expert to testify concerning Placke's signature. I am not a
handwriting expert but comparison of the signatures does
reveal some differences between the admitted signatures of
Placke and the disputed one which considering the contradic-
tory testimony, causes grave concern that the purported sig-
nature is genuine. When this is further compounded by some
distortions of his testimony by Timmerberg and by the con-
flict between Blanton 's testimony and his affidavit, I must
conclude that General Counsel has not proven that the signa-
ture on the August 15 document is that of Don Placke.
It is uncontradicted that on September 1, 1973, the men in
the shop were given a 35-cent-per-hour raise.
John Lydon testified that when he was hired by Mr. Wil-
liams in December, he asked whether the shop was union and
was told it was not Williams denied making such a state-
ment. Although Lydon was hired on a temporary basis to
work on used cars, in January he received a raise of $10 per
week. He testified that in January he was told by Williams
that he would be a full -time employee and after Blanton
spoke to him about joining the Union, he decided that as a
full-time employee he should join it for its good insurance
program and for protection and on Thursday, January 24,
atended a union meeting with Blanton and paid his $50 initia-
tion fee.
Lydon testified that on the afternoon of Friday, January
25, he was called to the office where Shop Foreman Williams
told him that he was going to have to let him go, that he
needed a fifth qualified Toyota mechanic and that he was not
qualified. Williams then sought to find work foi Lydon and
called two companies and succeeded in getting him a job at
G.A. Imports where Lydon reported the following Monday
and worked for some 4 months.
Lydon testified that on the afternoon of January 25, before
he was discharged, Steward Blanton told him the Company
knew he had joined the Union. Blanton, who was a witness
for the General Counsel, testified he had no recollection of
making such a statement to Lydon. Williams denied that he
had any knowledge of union activity or membership of Ly-
don.
Lincoln Babb, a General Counsel witness, testified that
some 2 weeks before Lydon's discharge, Shop Foreman Wil-
liams told him he was considering letting Lydon go since his
work output was not what it should be. Williams cor-
roborated this conversation. Babb mentioned to Blanton 2 or
3 days later, that Williams was probably going to terminate
Lydon and Blanton responded that he would have to get
Lydon in the Union before the Company terminated him.
PLACKE TOYOTA, INC.
Blanton denied that Babb had told him of Williams ' plan to
discharge Lydon.
Williams testified that some 2 weeks before the discharge
he became dissatisfied with Lydon 's work after he had given
him specific instructions regarding an automobile and Lydon
had done part of the work , lied to him about the remainder
of the work and when the car was started the engine froze
because Lydon had not done the specific things Williams had
instructed . Lydon admitted that he had not performed the
work Williams had specified . Williams testified that he de-
cided then to discharge Lydon , adding that he could not
afford to pay the full rate for Lydon since he was not qualified
and was not able to put out the work as it should be done.
He testified that he sought to find work for Lydon since
Lydon indicated that he wanted to become qualified as a
mechanic on imported cars and he therefore sought and suc-
ceeded in finding a job for him at G.A . Imports.
Union Representative Timmerberg testified that shop fore-
man Williams called him on Friday , January 25 , between 10
and 10 : 30 a.m . about his decision to lay off Lydon . Williams
denied making any such call to Timmerberg and there is no
mention of such an incident in Timmerberg 's affidavit, which
would have an important point for knowledge of Lydon's
union membership.
Lydon testified that he is somewhat accident prone and
sought to find out about insurance and inquired about it from
Williams who told him not to join the Union to get insurance
but that the Company was trying to get it out of the shop and
to wait and he would be covered by company insurance.
Williams specifically denied ever saying anything like this to
Lydon . Since Respondent was not making health and welfare
payments to the Union for several months prior , this pur-
ported conversation is unlikely , moreover around that time
Blanton became covered by the company policy.
Concerning the conversations after his discharge, Lydon
testified that in the first conversation , which he said took
place no more than 2 or 3 weeks after his discharge , Williams
asked if he had been approached by anyone from the NLRB
yet. He testified that in the second conversation which oc-
curred later in February , Williams said he should not say
anything to the NLRB if they asked him questions since he
had helped Lydon get a job. Lydon testified that his affidavit.
to the Board which reversed the order of these calls was
incorrect.
Williams testified that he talked to Lydon twice following
Lydon's termination, the first time some 3 or 4 days after his
discharge and the second time a week or more after that;
possibly as late as mid-February . In the first conversation he
asked Lydon about a torque converter and some other parts
from a Chevrolet Monte Carlo which Lydon had worked on
and Lydon told him where the parts were . In the second
conversation he asked Lydon about parts for a door for a
Chevrolet Corvette . Williams specifically denied saying any-
thing to Lydon about the NLRB in either conversation.
Williams' testimony as to the times of the two conversa-
tions and the estimate from Lydon for the first conversation
place them prior to the filing of the charge in this case which
would make it improbable that the conversations occurred.
The complaint allegation regarding Placke states that he
coerced an employee (Lydon) by calling him a troublemaker
as a result of Lydon 's participation in the unfair labor prac-
399
tice charge. Lydon 's testimony was that Placke in a telephone
call asked him what he was trying to pull , what he was doing.
He states he told Placke he thought he was terminated be-
cause he had joined the Union . He stated Placke asked if he
were worried about getting his money back from the Union.
Lydon testified that after his discharge he wrote to the
Union asking for a refund of his initiation fee, stating that he
felt he had been discharged for joining the Union . The Union
refunded his fee . Evidently this was what Placke referred to.
Placke stated he talked to Lydon following the filing of the
charge and after he had been interviewed by a Board agent
and denied that he had called Lydon a troublemaker or any-
thing similar because he had filed a charge.
The testimony of Lydon does not support the complaint
allegation.
In regard to the decertification petition Shop Foreman
Williams states that mechanic Whalen asked him about get-
ting rid of the Union and he advised Whalen to contact the
NLRB . Thereafter Whalen told him he had received the
language for a prepetition from the NLRB but it would have
to be typed and asked him to do it . Williams asked one of the
office girls to type it up and she then brought it back and laid
it on his desk . Whalen came by, signed it, and left it on the
desk saying that he would let the other men know about the
petition . According to Williams he did not ask any of the men
to sign the document but the men came up to the desk singly
and most of them signed it.
Steward Blanton said he saw the document on the desk, but
was not asked to sign it with Williams saying only he could
look at it if he wished.
Lincoln Babb testified very reluctantly about the docu-
ment , disputing some of the statements in his affidavit: His
initial testimony was that when turning in an order, he saw
the document on the desk , signed it and picked up another
order and went back to work . Babb maintained several times
that Williams had not told him he had to sign the document,
but could do so if he wanted . Babb was asked to read his
affidavit aloud and it recited that Williams had said he
wanted Babb to sign it and that other employees had signed
it.
C. Analysis and Conclusions
The main ingredient lacking to make a case for Lydon's
discharge is Respondent 's knowledge of any union activities
or membership or suspicion thereof concerning Lydon. Ly-
don tried to supply knowledge by his statement about Blan-
ton. Blanton had no recollection of such a statement and
knowledge was denied by the originator of the termination,
Shop Foreman Williams.
There is no credible testimony to demonstrate Respondent
knowledge concerning Lydon and in the particular circum-
stances of this case I would not apply the small plant doctrine
because apparently only Lydon and Blanton knew Lydon
joined the Union and the time span is so short.
Though there is some dispute as to whether Blanton knew
10 days previously of a planned termination, there is cor-
roborated testimony that Williams planned to discharge Ly-
don for 2 weeks. The fact that Lydon was the son of a friend
of Placke and got his job in that manner may well account
for the length of time until the discharge and the amicable
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way in which it was handled with Williams finding Lydon
another job.
Therefore I conclude and find that the General Counsel
has not proven that Respondent violated the Act in its termi-
nation of Lydon.
The refusal-to-bargain allegation rests mainly on the dis-
puted contract extension (G.C. 4) dated August 15 As in-
dicated above there is insufficient evidence for me to find that
Placke signed that document. The weight of the testimony is
that Placke had an indication from most of his mechanics
that they would not support a strike, did not have an interest
in the Union, and that two of the three men did not want it
and based on that he refused to bargain further with the
Union. To have changed the August 15 document as Tim-
merberg asserts Placke did for the asserted reasons does not
make much sense and I do not believe Placke signed that
document. Therefore the request to bargain was made on
August 15 and was then refused. The requests made
thereafter as alleged in the complaint were followups to
see whether Placke had changed his mind. Essentially the
mechanics' shop was nonunion on and after August 15,
1973. Respondent by inadvertency continued to make
some payments to the Union which it had been making
under the old contract.
In essence Respondent had reasons to believe that the Un-
ion did not really represent its employees, commencing with
the statements of the mechanics in early August that they
would not support a strike and were not in favor of a union,
through the changes in personnel and others not joining the
Union and the nonenforcement of the contract.
It would appear further that if the August 15, 1973, date
is proper for the refusal to bargain, there may be a 10(b)
problem since the charge was filed on February 20, 1974..
In summary I find that there is insufficient proof to estab-
lish that Respondent violated Section 8(a)(5) of the Act The
asserted violations are essentially based on the bona fides of
the August 15 document and I have found that document not
proven. Without that document there is no warrant for the
assertion that Respondent is refusing to sign an agreed-to
written contract and the remaining 8(a)(5) allegations are
dependent on that asserted contract.
As to the 8(a)(1) allegations I do not credit the testimony
of Lydon in his assertions as to Williams. Lydon's testimony
was contradicted by both General Counsel and Respondent
witnesses and he was even in conflict with his own affidavit.
I did not find him to be a credible witness. In the amended
8(a)(1) allegations as to telephone calls with Williams, it is
clear from the timing of at leas" one if not both of the calls
that Williams would not have raised the subject of what the
NLRB was going to do since the charges against the Com-
pany had not then been filed. As noted above Lydon's tes-
timony did not support the allegations as to Placke.
In regard to the prepetition for decertification the tes-
timony does not show that it was instigated by the Company
or that Williams urged employees to sign it. The testimony
shows that the prepetition language was gotten by an em-
ployee and that Williams had it typed for that employee and
that it lay on an order desk where the employees signed it.
I conclude and find that Respondent did not violate Sec-
tion 8(a)(1) of the Act as alleged and recommend in view of
this and the other findings above that the complaint be dis-
missed.
Upon the basis of the foregoing findings and conclusions,
I hereby issue the following recommended:
ORDER'
The complaint and charge in this matter are hereby dis-
missed on the basis that the proof is insufficient to find that
Respondent violated Section 8(a)(1), (3), and (5) of the Act
as alleged.
2 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