N.L.R.B. v. Patrick Plaza Dodge, Inc.

• Decision Date: 08 August 1975
• Docket Number: No. 74-2078,74-2078
• Citation: 522 F.2d 804
• Parties: 89 L.R.R.M. (BNA) 2308, 90 L.R.R.M. (BNA) 3167, 77 Lab.Cas. P 10,868 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PATRICK PLAZA DODGE, INC., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 804

522 F.2d 804

89 L.R.R.M. (BNA) 2308, 90 L.R.R.M. (BNA) 3167,

77 Lab.Cas. P 10,868

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PATRICK PLAZA DODGE, INC., Respondent.

No. 74-2078.

United States Court of Appeals Fourth Circuit.

Argued April 11, 1975.

Decided May 13, 1975.

Modification Denied Aug. 8, 1975.

John F. Depenbrock, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B. and Alan D. Cirker, Atty., N. L. R. B., on brief), for petitioner.

George V. Gardner, Washington, D. C. (Asa Ambrister, Gardner & Ambrister, Washington, D. C., on brief), for respondent.

Before ALDRICH, ^* Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

This is a petition to enforce a multiple order of the National Labor Relations Board; to bargain with the union; ¹ to reinstate or make whole four named employees, and not to grant increases in benefits to discourage union activities. ² Since we find the order unjustified in part, a considerable recitation of facts is called for.

Respondent Patrick Plaza Dodge, Inc., sells and services new and used cars, the former manufactured by Chrysler Corporation.

At the time in question, January, 1973, it had been in business some four years, heavily financed by Chrysler, and had twenty-two employees in its service department. The administrative law judge, all of whose findings were adopted by the Board, warrantably found that "during most of its entire existence (respondent) has been undercapitalized, inefficiently managed, and in a very poor, if not crucial, financial condition." At least so far as the service department was concerned the situation became particularly acute during the last two months of 1972. Many service employees were paid on a piece-work basis, but with a guaranteed weekly minimum. Productivity fell so far below this that on January 2 respondent cancelled the minimum. Another problem had been that Chrysler had been rejecting in substantial amounts, as insufficiently established, claims for work allegedly done on manufacturer's warranties. Since no charge had been made against the customer, denial of reimbursement resulted in a total loss.

For nearly a year respondent had requested a visit of a Chrysler representative to analyze its business and make suggestions. In response to this, representative Gill arrived on Tuesday, January 16, departing on Thursday. Thursday respondent's owner and manager, Kerns, also left on a trip. The next day Kerns telephoned Billings, respondent's service manager, to discharge six named employees in the service department. Following conversations with Billings ³ at the end of the day, the six were terminated.

Pausing here, a complaint was filed with the Board requesting reinstatement of five dischargees. There is no explanation why the sixth individual was not named. At the trial, one of the five conceded that he had voluntarily quit on being refused a raise. It further appeared that Hager, one of the remaining four, had been reinstated long prior to the charge. (However, he is involved to the extent of ten days' loss of pay.) The other three are Spangler, Morris and McDowell.

Subsequent to the discharges, on January 23 there was posted a notice of a small wage increase for service department employees, and some minor added fringe benefits. On January 29 Hager, at the request of fellow employees, was offered reinstatement. The following day a letter was received from the union representative stating that he held cards of fifteen members of the service department (as of January 19) and wished to negotiate. Respondent's lack of response led to the present proceedings.

The union activity concededly commenced on Wednesday, January 17 when Hager, Spangler and one Mitchell drove to the premises of a Ford dealer in a neighboring town whose service department was on strike, and asked for cards. Not having any, some, but not enough, were brought to the shop the next day. There was no evidence that the carrier was observed or recognized. In order to obtain more cards, an arrangement was made whereby Hager would meet someone at the supermarket. During the lunch hour Hager and several other employees, including the bookkeeper, who we will assume to be a supervisor, drove to lunch in a car. Hager stopped at the market, went to meet the Ford employees, and picked up the cards and put them in his pocket. Hager, who was General Counsel's first, and perhaps principal witness, testified that he concealed what he had done; that no one said anything, and that Allen, the bookkeeper, had no idea of what had transpired. Although this was not contradicted directly or indirectly (cards were first circulated, and that secretly, the next day), the judge found it "highly unlikely" that Allen did not perceive the nature of Hager's errand. This was the first of his inferences contrary to General Counsel's own evidence and factually unsupported. There was no evidence anywhere, unless it could be inferred The judge's thinking was circular. First, he conceded that there was no evidence that respondent knew of the union activity, and that because of its financial problems there was reason to make discharges. He then concluded that the coincidence of the date was circumstantial evidence that respondent knew of the activity. ⁴ In emphasizing this coincidence the judge made no reference to the coincidence of the discharge with the visitation by the manufacturer's representative, Gill, of which more, post. He then concluded that the reasons for the discharges, first stated to be sufficient, were pretextual. ⁵

from pretextual discharges, warranting even an inference that respondent knew of union activity until January 30.

The best that can be said for such an analysis is that it fails to recognize the burden of proof. In the first place, the burden is on the Board to show that the employer had knowledge of the union activity, NLRB v. Shen-Valley Meat Packers, Inc., 4 Cir., 1954, 211 F.2d 289; NLRB v. Gotham Industries, Inc., 1 Cir., 1969, 406 F.2d 1306, 1310. This, or any other burden, cannot be satisfied by "suspicion or surmise." Shen-Valley, ante, at 292. When knowledge has been shown, or warrantably inferred, and even when there is evidence of anti-union animus, the Board must still affirmatively show that the discharges were improperly motivated. NLRB v. Consolidated Diesel Elec. Co., 4 Cir., 1972, 469 F.2d 1016, 1024-25; NLRB v. United Brass Works, Inc., 4 Cir., 1961, 287 F.2d 689. If in fact there was no cause for discharge, there may well be an inference that the assigned reason was pretextual. But when cause exists, the Board must show an "affirmative and persuasive reason why the employer rejected the good cause and chose a bad one." NLRB v. Billen Shoe Co., 1 Cir., 1968, 397 F.2d 801, 803. As the court said in Appalachian Electric Power Co. v. NLRB, 4 Cir., 1938, 93 F.2d 985, at 989, quoted in Shen-Valley, ante, at 293, "(E)vidence . . . which gives equal support to inconsistent inferences" is not enough. Were the rule otherwise, any employee who had been guilty of conduct warranting discharge could protect himself by openly engaging in union activities, and run for luck, a procedure well illustrated in Billen.

In the case at bar, the employer was not even dependent on its own witnesses to prove the existence of cause; the reasons came from the dischargees themselves. Thus Hager had been told a couple of weeks before that he would "have to speed it up." "I'd say in the two months prior to the time he called me back, the first part of December, last part of November, even, I wasn't producing." ⁶ Hager not only admitted a slowdown as to himself, but said it had been general in the last two months as to the other employees.

Nor was Hager the only one. Spangler, called by General Counsel, stated on direct examination that the employees were supposed to punch a time clock, and agreed with Billings that he did not do it "all the time;" that one man would "punch a time clock for three or four men or something like that," and admitted that he had been spoken to from time to time for not "giving out enough work," although never to the point of thinking he would be fired. On cross-examination, however, he admitted that he Morris, whose duties were to prepare and test new cars, challenged on the stand with having done sloppy work, replied that when customers were in a hurry his instructions were to "throw the hub caps on" and give the car a wash. While questions of credibility are not normally for us, this excuse does not seem persuasive evidence for the General Counsel. Even more singular was the testimony of McDowell, whose duty it was to make out warranty work claims. Charged on cross-examination with improper work, he stated that this was because every day he was told to make out false claims. His supervisor, Billings, not unnaturally...