NLRB v. Winkel Motors, Inc.

• Decision Date: 27 May 1971
• Docket Number: No. 25904.,25904.
• Citation: 443 F.2d 38
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WINKEL MOTORS, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

443 F.2d 38 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WINKEL MOTORS, INC., Respondent.

No. 25904.

United States Court of Appeals, Ninth Circuit.

May 27, 1971.

William F. Wachter (argued), Daniel M. Katz, Attys., Marcel Mallet-Provost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel; Arnold Ordman, Gen. Counsel, NLRB, Washington, D. C., Roy O. Hoffman, Director, NLRB, San Francisco, Cal., for petitioner.

Jack I. McAuliffe (argued), of Streeter, Sala & McAuliffe, Reno, Nev., John D. Foote, Regional Office of Intl. Assn. of Machinists & Aerospace Workers, Burlingame, Cal., for respondent.

Before HAMLIN and DUNIWAY, Circuit Judges, and CURTIS, District Judge^*

PER CURIAM:

The National Labor Relations Board applies to this court, pursuant to section 10(e) of the National Labor Relations Acts, as amended, 29 U.S.C. § 151 et seq., seeking enforcement of its order dated September 25, 1969, against respondent, Winkel Motors, Inc. The order was entered after the Board found that respondent violated section 8(a) (1) and (3) of the Act.

Some of the facts surrounding the unfair labor practice in question may be summarized as follows: Homer Davis was employed by respondent as a heavy duty mechanic from January 19, 1968, until October 21, 1968, the date of his discharge. Respondent is engaged in the business of selling new and used automobiles and trucks at retail in Reno, Nevada, its principal place of business. Davis, whose duties consisted mainly of repairing and maintaining rear end assemblies, transmissions and automobile engines, was paid by the job on a "flat rate" or "piece rate" basis, with a guaranteed minimum of 31 hours each work-week at the prescribed hourly rate.

Davis became active in union organization activity in July, 1968; cooperating with the Machinists Union, he actively recruited the employees of respondent and other Reno automobile dealers. Acting through other employees of respondent, Davis collected fourteen signed union authorization cards which were, in turn, placed in the hands of union officials. He also actively participated in organizational meetings held during the period of the drive to gain union recognition. Respondent was aware of these organizational activities undertaken by Davis.

On Friday, October 18, 1968, Davis left work early as there was no work available for him that afternoon. Elvin L. Swim, the service department manager, gave his consent to the early departure and indicated that "he had a five-speed transmission coming in for Monday morning that he wanted (Davis) to overhaul." While Davis normally would receive his paycheck for the workweek, which ended on Thursday, on Friday, his failure to stay until normal closing hours precluded him from doing so.

On Monday, October 21, 1968, Davis reported for work as usual, but was told by Swim that he would "have to let (Davis) go" because he had "to cut down in personnel." Davis argued that there were several workers who had been employed less time than he, but Swim indicated that he had "been all through this Saturday and this is the way I have to do it." He received two paychecks, one for the previous work-week and one for the partial workday on Friday.

There was testimony which indicated that on Friday, October 18, or on Saturday, October 19, a letter dated October 17 was delivered to respondent, addressed to "Chet" (Chester) Winkel, corporate president, and was brought to the attention of Robert Winkel, secretary-treasurer of respondent. It announced that the Machinists Union represented a majority of respondent's service department employees, that it wished to prove its majority by independent audit of the signed authorization cards and meet on a stated date for the purpose of contract negotiations.

The trial examiner made detailed findings of fact of circumstances surrounding Davis' employment, his work record, his union organizational activities and the company's knowledge thereof, and of Davis' discharge; and concluded that the respondent discharged him because of his union organizational activity among its employees, which...