Rinke Pontiac Co.

RINKE PONTIAC CO. 239 Rinke Pontiac Co. and Stephen Terpevich . Case 7- CA-11037 January 17, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO Terpevich because of his protected concerted activities. At the close of the hearing, the parties waived oral argument but thereafter filed briefs in support of their respective positions. Upon the entire record,3 and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS On September 30, 1974, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief to the Respondent's 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 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, Rinke Pontiac Co., Warren, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i Respondent's request for oral argument is hereby denied, as the record and the briefs adequately present the issues and positions of the parties. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all parties represented, was heard on July 23 and 24, 1974, in Detroit, Michigan, on the complaint of the General Counsel issued on May 22, 1974,1 and the answer of Rinke Pontiac Co., herein called the Respondent or Company. In issue is the question whether the Respondent, in violation of Section 8(axl) of the National Labor Relations Act, as amended,2 discharged employee Stephen i The complaint is based on a charge filed by Stephen Terpevich on March 28, 1974, a copy of which was duly served on the Respondent by registered mail the next day. 2 Sec. 8(aXI) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Insofar as pertinent, Sec. 7 provides that "[e ]mployees shall have the right to self-organization , to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .... " 3 No opposition having been received, the General Counsel's motion to 216 NLRB No. 49 I. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, has a Pontiac automobile dealership in Warren, Michigan, where it is engaged in the business of selling and servicing new and used automobiles. Its annual gross revenue from these operations exceeds $500,000. It also annually purchases automobiles and parts valued in excess of $50,000 which are shipped directly to its Warren place of business from points located outside Michigan. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Terpevich's employment history; the events preceding his discharge In 1973,4 during which year the events herein occurred, the Respondent employed some 10 new-car and four used- car salesmen. One of the used-car salesmen and the subject of this proceeding was Stephen Terpevich who was summarily discharged on October 26 under the circum- stances related below after 5 years of employment with the Respondent. Admittedly, Terpevich was the Company's top and most productive salesman, selling more cars than the other salesmen, earning more commissions than any of them, and winning various awards for his sales accomplish- ments.5 In addition, he sold more credit life insurances to customers than did the other salesmen for which he also received commissions. About 2 weeks before Terpevich's brother, Al, resigned from his job with the Respondent as used-car sales manager on May 1, Terpevich was inter- viewed for this position. According to Terpevich, he was not interested in the manager's job unless he was paid a higher salary than that offered. On August 1, the Respondent instituted a new plan for the sale of credit insurance to car purchasers. Unlike the prior plan which provided only for life insurance for the correct the transcript of testimony is hereby granted and the transcript is accordingly corrected in the indicated respects, as set forth in Appendix B attached hereto. [Appendix B omitted from publication.] 4 Unless otherwise indicated, all dates refer to 1973. 5 It appears that between May I and his discharge on October 26, there was a drop in the number of his car sales and amount of earnings . Terpevich attributed this situation to market conditions and sickness . The productive- ness of other salesmen similarly suffered during this period. 6 Such insurance is usually sold to customers who finance their automobile purchases in order to provide for the repayment of the indebtedness in case of their death. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repayment of the indebtedness in case of death, the new one offers, not only this type of insurance, but also health and accident insurance for the repayment of installments of the debt in case such contingencies arise . Coverage for this insurance entails a much higher premium cost to the customers than did the insurance offered under the former plan. The new insurance is part of a complete program for which the Respondent contracted with American Way Service Corporation. Included in the program are provi- sions for the promotion and the sale of the insurance. This is achieved through an incentive system of compensating salesmen for their successful efforts in selling the insurance by crediting them with points which are convertible into merchandise at wholesale prices or less .7 The salesmen's compensation for selling this insurance is based on a sliding scale designed to motivate them to accomplish certain minimum standards of performance and to give them bonus compensation if they exceed those minimum standards. By contrast, the former plan prescribed a straight commission of 10 percent of the insurance premium sold to customers. Concerned over the complexity of the new program and lacking knowledge or sufficient information as to whether this program would be more beneficial to them than the supplanted plan, the salesmen held frequent meetings among themselves on the Respondent's premises . In these discussions, the salesmen raised questions pertaining to the method of compensation, particularly after they had received their first report of their insurance earnings 1 month after the plan went into effect. They also voiced the need for meeting with management and American Way, the sponsor of the program, to secure clarification of the matters which were troubling them. Norman Hoefler, the used-car sales manager, testified that he overheard discus- sions among salesmen in which they were critical of certain aspects of the program and in which Terpevich expressed his dislike of certain of its features . In addition, there is evidence that salesmen made inquiries of Hoefler and Lewis Rancilio, the new-car sales manager, regarding the mechanics of the program and the compensation the salesmen were entitled to thereunder, but that the managers' responses revealed that they, too, were unin- formed. Although it appears that ultimately many sales- men increased their insurance earnings under the new program, the merits of this program as compared with the old plan are concededly not in issue. In the meantime, the Respondent arranged with Ameri- can Way President Thomas Warmus to conduct a series of five meetings with the Respondent's salesmen for the purpose of explaining the operation of its program, the underlying incentive system of compensation , the substan- tive terms of the insurance offered, and the technique of selling this insurance. Two or three meetings were held before October 25 where Warmus lectured on some of these subjects, including the method of determining the salesmen's compensation under the incentive point system. r However, the salesmen are given the option of being paid in cash at an arbitrarily deflated rate. The findings concerning this meeting are based on a composite of the record testimony which I find reflect what probably transpired there. Terpevich testified that he did not attend these sessions because of illness. On October 25,8 Warmus conducted the next meeting on the Respondent's premises which the new- and used-car salesmen, the sales managers, and Roland Rinke, the Respondent's president, attended. Terpevich, however, was about a half-hour late. Before Terpevich's arrival, Warmus began to discuss various aspects of the program and the technique of selling his company's insurance. During his discourse, questions were invited from the floor, which were answered by Warmus. Among the questions asked was one by Raymond Fuhrman, a new-car salesman, who inquired about the legality of selling American Way's insurance in Michigan.9 It further appears that several salesmen also posed questions relating to the incentive pay plan. As the meeting progressed, Terpevich entered. It was not long before he questioned Warmus about the fairness of the incentive plan for paying the salesmen for their insurance sales and referred to his experience whereby he assertedly received $7 less commissions under the new plan than he would have earned under the former fixed percentage plan. In response, Warmus proceeded to clarify the functioning of the incentive system and its objective to motivate the salesmen in selling the insurance, noting that the salesmen had actually benefited from the institution of this program. Warmus also commented that in the 2 months that the new program was in effect Terpevich earned more, in totality, than he would have made under the old plan. Not satisfied with Warmus' explanation, Terpevich persisted in finding fault with the incentive system and declared his inability to understand why he should be penalized if he did not sell the insurance to all potential customers. This led to a heated and emotional exchange between Terpevich and Warmus in which Terpevich pointed his finger at Warmus as if to emphasize his remarks. When Terpevich alluded to another sales- man's complaint concerning his reduced compensation under the new program, Warmus replied that since that salesman did not complain why should Terpevich. The upshot of the Terpevich-Warmus argument was Warmus' announcement that the meeting was no longer construc- tive; that he had no intention of continuing his argument with Terpevich; and that if the American Way program was not wanted, he would withdraw it. On that note, the meeting abruptly ended with Warmus, who was visibly angered by the developments, walking out. Warmus testified that subsequently four or five salesmen ap- proached him and apologized for the turn the meeting had taken. Rinke, who was distressed that the meeting had broken up under the circumstances it did, told the salesmen that he was determined to retain the new program, which he considered was the best one he had ever had and was most lucrative for the Company, as well as the salesmen. Terpevich informed Rinke that he, too, wanted the program, but that he could not understand why Warmus 9 The next day, Fuhrman was given a 2-day disciplinary layoff. President Rinke admitted that one reason for the layoff was Fuhrman's inquiry concerning the legality of the new insurance which he (Rorke) considered was irrelevant. RINKE PONTIAC CO. 241 was unable to furnish a satisfactory explanation of its operation. Later, Rinke expressed his regrets to Warmus for the outburst at the meeting and requested Warmus to retain the Company's account, which he agreed to do. 2. Terpevich's discharge Shortly after Terpevich reported for work the next day (October 26) Used-Car Sales Manager Hoefler summoned and accompanied Terpevich to President Rinke's offtce.'° There, Rinke mentioned that he had already given New- Car Salesmen Munaco and Fuhrman a 3-day disciplinary layoff." Rinke then informed Terpevich that he had also decided to terminate him. Rinke stated that he was dissatisfied with Terpevich's attitude, job performance, and other indicated shortcomings and that it was his inexcusa- ble conduct at the October 25 meeting which brought matters to a head. Furthermore, Rinke charged Terpevich with disrupting the meeting and causing him embarrass- ment and declared that he had enough personnel problems in other departments that he did not need them in the sales department. In addition, Rinke reviewed the other reasons prompting his discharge decision , which were outlined in the notice of disciplinary action given to Terpevich on October 29. This led to a discussion concerning Terpe- vich's tardiness ; the drop in his car sales; a stolen car incident where he refused to sign a complaint against the thief; his failure to obtain from a customer an odometer affidavit; his alleged loss of interest in his job; Hoefler's inability to control him; and his ownership of a horse farm.12 Alluding to his long service with the Respondent and the fact that he had been frequently consulted by management with respect to business matters, Terpevich tried to persuade Rinke to change his mind and retain him but to no avail. On October 29, the Monday following his termination, Terpevich went to the Respondent's establishment to pick up his personal belongings and paycheck. While there, General Manager Joe Rinke handed him a notice of disciplinary action which noted October 25 as the "Date of Violation." Under the subject of "Reason for Discipline," the following items were checked: Tardiness (with "Late Every Day of Wk. of Oct. 22nd" inserted), Misconduct, and Unsatisfactory Performance. In the paragraph entitled "Other Just Cause," the following was written in: 10 The findings concerning the discharge interview are based on credited portions of the testimony of Roland Rinke, Hoefler, and Terpevich. However, the narration does not necessarily reflect the precise order the subjects were discussed. ii Fuhrman's layoff was actually for 2 days . The notice of disciplinary action given to him states, among other reasons for the layoff, "Poor Conduct At Sales Meeting-Argumentative Remarks ." Rinke testified that this reason referred to Fuhrman 's questioning the legality of the new insurance program at the October 25 meeting which he (Rorke) considered was irrelevant. 12 In view of the fact that it is undisputed that Terpevich's conduct at the October 25 meeting precipitated his discharge and was at least one factor causing it, it is unnecessary to determine whether and to what extent the other asserted reasons contributed to the discharge decision. As indicated in my concluding findings, infra, such a determination would not affect my ultimate conclusion. However, it is observed that the additional reasons are not entirely beyond suspicion. Significantly, at no time was Terpevich, the Respondent's top producer, ever warned or threatened with discharge or even discipline if his performance or other shortcomings did not improve. Indeed, the only thing the Respondent did with respect to his tardiness, Employee failed to have an Odometer Statement signed and completed on sale of P9110 and 71 trade taken in on this deal. Poor conduct at sales meeting. Came in one hour late and wanted to argue with representative of American Way Ins. (Thom Warmus) about program. Completely disorganized meeting. Under the subject of "Remarks," this was written: "U/C MGR [used-car manager ] and DLR [dealer] felt employee has lost interest in job-Has a horse farm. Sales off 49 units in 9 months." B. Concluding Findings The General Counsel contends that the evidence establishes that Terpevich's participation in the October 25 meeting was a protected concerted activity and that his discharge for this reason violated Section 8(a)(l) of the Act. Denying that the discharge was unlawful, the Respondent argues that Terpevich's activity was not concerted, but rather was an unprotected individual complaint or gripe; that his action at that meeting was not prompted by a desire or purpose to change or otherwise affect conditions of employment; that his heated exchange with American Way President Warmus, who had no control over the salesmen's compensation, was misdirected and therefore Terpevich made himself vulnerable to discharge; that the Respondent was unaware that Terpe- vich was acting in concert with his fellow salesmen; and, finally that he misconducted himself at the meeting. Section 7 of the Act guarantees to employees "the right to . . . engage in . . . concerted activities for the purpose of . . . mutual aid or protection .... " To terminate an employee for exercising this right violates Section 8(a)(1) of the Act.13 Even if the discharge is caused in part only by the employee's protected concerted activities, it is similarly unlawful, despite the existence of good grounds for terminating him.14 Of course, under the plain language of the Act, only employee concerted activities are protected. To qualify as concerted activity, as one court observed, it must be "engaged in with the object of initiating or inducing or preparing for group action or . . . [have] some which was not a recent development and was also prevalent among other salesmen, was to alert Terpevich that he was late or to give him a pink slip. Moreover, although Terpevich's car sales had declined in 1973 as compared with 1972, most of the other salesmen similarly experienced a reduction in their sales. As for his failure to secure from customers odometer affidavits in one deal, other salesmen also overlooked securing them . In fact, Fuhrman only received a 2-day layoff, mentioned above, for failing to obtain such affidavits in connection with four deals and for other reasons. In any event, these omissions are usually corrected before the deal is finally concluded. With respect to the stolen car episode, which occurred more than 6 weeks before the discharge, the car was recovered undamaged and the thief was apprehended. It also appears that Terpevich's approach to the problem was vindicated. Finally, Terpevich's ownership of a horse farm was not only known to the Respondent for some time, but dated back to a time before he entered the Respondent's employ. i3 N.LR.B. v. Washington Alununum Co., 370 U.S. 9, 16-17 (1962). i4 N.LR.B. v. West Side Carpet Cleaning Co., 329 F.2d 758,761 (C.A. 6, 1964); N.LR.B. v. Adam Loos Boiler Works Co., 435 F.2d 707 (C.A. 6, 1970). 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to group action in the interest of the employees." 15 The same court also pointed out that "preliminary discussions are [not ] disqualified as concerted activities merely because they have not resulted in organized action or in positive steps toward presenting demands." 16 On the other hand, "in some circumstances entirely individual action or speech is not concerted activity" and may amount to no more than an unprotected personal gripe or complaint.17 It is clear that Terpevich's criticism of the new incentive compensation plan and his involvement in a heated argument with American Way President Warmus at the October 25 meeting was, at least, a substantial cause of his discharge and, indeed, precipitated it. The crucial question thus to be decided is whether Terpevich's conduct at that meeting constituted protected concerted activity. Applying the foregoing well-settled principles, I find that it did and that his discharge violated Section 8(axl) of the Act. As indicated above, Terpevich's activity at the October 25 meeting was essentially a continuation of the group discussions in which he and other salesmen participated among themselves following the Respondent 's institution of the new insurance program with its incentive pay features. This was a natural reaction of the salesmen to their lack of information and apprehensiveness concerning the new program in an effort to learn about its operation and whether they would earn more from the sales of insurance under this plan than they did under the former one. Certainly, these matters directly related to their legitimate interests in terms and conditions of employment and their discussions, as well as inquiries they made of the car sales managers, regarding such matters constituted a form of protected concerted activity in their embryonic stage, even though no immediate change in the new program was demanded or contemplated .18 Therefore, when Terpevich at the October 25 meeting challenged the fairness of the incentive insurance pay plan and soon became embroiled in a sharp dispute with Warmus who, as the sponsor of the plan, attempted to justify it, Terpevich was clearly exercising his right to present objections to an important aspect of the new program which was of mutual concern to all the salesmen . I find that Terpevich's action was a concerted activity and not simply an unprotected personal gripe or complaint, as the Respondent insists.19 The fact that he supported his position by calling attention to his own loss of $7 under the new plan which he would have earned under the old plan does not negate the concerted character of his activity.20 Indeed, the concerted quality of Terpevich's conduct is demonstrated, not only is Mushroom Transportation Company, Inc. v. N.LRB., 330 F.2d 683, 685 (C.A. 3, 1964); see also Signal Oil and Gas Company v. N.LRB., 390 F.2d 338, 342 (C.A. 9, 1968); Hugh H. Wilson Corporation v. N.LR.B., 414 F.2d 1345, 1354 (C.A. 3, 1969). 16 Mushroom Transportation, supra 685. 17 Signal Oil, supra, 342; see also Hugh H. Wilson Corporation, supra, 1348. 18 Washington Aluminum, supra, 14; Hugh H. Wilson Corporation, supra, 1350, fn. 9. 19 An inference of concerted activity is not precluded by the fact that the meeting was called by management to discuss the operation of the program and the technique of selling the offered insurance and to air employee questions. Hugh H Wilson Corporation, supra, 1330. 5° See N.LRB. v. Interboro Contractors, Inc., 388 F.2d 495,499 (C.A. 2, 1%7), where the court observed that "[e]ven if it were true that ... [the by the fact that he, argued in terms of the adverse effects the incentive pay system had on the salesmen's earnings generally, but he specifically referred to another salesman's loss of earnings under the program, but Warmus refused to listen. Moreover, it appears that Terpevich was not alone in raising questions about the pay plan at this meeting. Salesman Fuhrman also challenged its legality. In any event, it may be reasonably assumed that, in speaking against the incentive pay plan, Terpevich was simultane- ously seeking to muster support for his views from the salesmen attending the meeting. As was observed by the Fourth Circuit Court of Appeals,21 "The activity of a single employee in enlisting the support of his fellow employees for their mutual.aid and protection is as much 'concerted activity' as is ordinary group activity. The one seldom exists without the other." In sum, I find, that Terpevich's activity definitely bore "some relation to group action in the interest of the employees," 22 entitling him to the protection of the Act. The Respondent, nevertheless, maintains that Terpe- vich's activity was not concerted since there was no evidence of a purpose to change the method of insurance sales compensation. I find this contention unpersuasive. While Terpevich indicated that he liked the program, there could be no doubt that implicit in his criticism of the incentive pay plan was at least a demand for its modification.23 At any rate, concerted activity for mutual aid and protection does not lose its character because the employees had not yet proposed changes 24 Equally untenable is the Respondent's contention that, as Terpevich's complaint was directed to American Way President Warmus who lacked the power to make changes in conditions of employment, Terpevich's activity was not protected and he was therefore vulnerable to discharge. The short answer is that American Way was the promoter of the program in question; it had contracted with the Respondent for its institution at the Respondent's automo- bile agency; and the Respondent had arranged with American Way to conduct a series of meetings with the salesmen to explain the operation of the plan, the technique of selling its insurance, and to answer questions regarding these subjects. In this context, Terpevich at the October 25 meeting voiced his criticism of the incentive pay plan to Warmus in the presence of Rinke, the Respondent's president. I am unable to find anything in Terpevich's conduct in addressing his remarks to Warmus which rendered him subject to discharge.25 Nor am I able to perceive anything in Terpevich's heated exchange with Warmus which was so indefensible, intolerable, or unrea- employee) was acting for his personal benefit, it is doubtful that a selfish motive negates the protection that the Act normally gives to Section 7 rights." 21 Owens-Corning Fiberglas Corporation v. N.LRB., 407 F.2d 1357, 1365 (C.A. 4,1%9); see also Hugh H. Wilson Corporation, supra, 1557. ss Mushroom Transportation, supra, 685. 23 It is noted, however, that in its motion for summary judgment filed before the hearing, the Respondent contended that, if Terpevich engaged in concerted activity, its only purpose was to force the Respondent to reinstate its former illegal plan. 24 N.LR.B. v. Washington Aluminum Co., 370 U.S. 9, 14 (1%2); Hugh H. Wilson Corporation v. N.LR.B., 414 F.2d 1345, 1350, fn. 9 (C.A. 3 , 1969). 75 National Shirt Shops of Delaware, Inc., 123 NLRB 1213 (1959), cited by the Respondent, absolutely has no bearing on the situation involved in the case at bar. RINKE PONTIAC CO. sonably disruptive of order or discipline as to warrant depriving Terpevich of statutory protection for his concert- ed activity.26 Lastly, the Respondent seeks to be relieved of liability on the ground that it was unaware that Terpevich was engaged in concerted activity. I find this defense also to be lacking in merit. It is sufficient that the Respondent was familiar with the pertinent facts recited above on which I have found the existence of concerted activity. In these circumstances, the Respondent's mistaken belief that Terpevich's conduct only amounted to' personal griping cannot nullify Terpevich's rights and justify his dis- charge.27 Accordingly, I conclude that, as Terpevich was engaged in concerted activity for mutual aid and protection, his discharge was violative of Section 8(a)(1) of the Act.28 III. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and like and related conduct and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent unlawfully discharged employee Terpevich because of his protected concerted activity. To remedy this unfair labor practice, it is recommended that the Respondent offer Terpevich immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of his unlawful discharge by payment to him of a sum of money equal to that which he normally would have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings during the said period . Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). To facilitate the computation, as well as to clarify the named employee's right to reinstatement, the Respondent shall make available to the Board, upon request, payroll and other records necessary and appropri- ate for such purposes. The posting of a notice is also recommended. Upon the basis of the foregoing fmdings of fact and upon the entire record in the case, I make the following: 29 Hagopian & Sons, Inc. v. N.LKB., 395 F.2d 947, 952-953 (C.A. 6, 1968); Hugh H. Wilson, supra, 1355-56 ; Washington Aluminum, supra, 17. 27 Cusano v. N.LR. B., 190 F.2d 898, 902-903 (C.A. 3,195 1). 29 N.L.R.B. v. Jamestown Veneer & Plywood Corp, 194 F.2d 192 (C.A. 2, 1952); N.L.R.B. v. Office Towel Supply Co, Inc, 201 F.2d 838 (C.A. 2, 1953); Southwest Latex Corporation v. N.LR. B., 426 F.2d 50 (C.A. 5, 1970); and N.L.R.B. v. Buddies Supermarkets, Inc., 481 F.2d 714 (C.A. 5, 1973), relied on by the Respondent for a contrary result, are factually distinguisha- ble. In Jamestown, the court held that four employees, who were provoked by the shortness of a notice of layoff and left the plant early for that reason, were not engaged in protected concerted activity. In Office Towel, the court held that an employee's remark that this was "a hell of a place to work" was CONCLUSIONS OF LAW 243 1. The Respondent is an employer engaged in commer- ce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Stephen Terpevich for engaging in protected concerted activities for mutual aid and protec- tion, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: ORDER29 The Respondent, Rinke Pontiac Co., Warren, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise disciplining employees for engaging in protected concerted activities for mutual aid and protection with respect to wages, hours, or other terms and conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities 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 by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Stephen Terpevich immediate and full rein- statementtophisfformer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of his unlawful discharge, in the manner set forth in the section of this Decision 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, timecards, personnel records and reports, and all other records necessary and useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. mere griping and not a form of concerted activity whose existence was known to the company and her discharge was therefore pernussible. In Southwest, the court found that the discharge was for improper performance of duties and griping and not for unknown concerted activities. And in Buddies, the court similarly held that the discharge was for individual griping and not for concerted activities. 29 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. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its Pontiac Automobile Agency in Warren, Michigan, the attached notice marked "Appendix A."30 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 30 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 tht National Labor Relations Board." APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discipline employees for engaging in protected concerted activi- ties for mutual aid or protection with respect to wages, hours, or other terms and conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities 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 by Section 8(a)(3) of the Act. WE WILL offer Stephen Terpevich immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of his unlawful discharge. RINKE PONTIAC CO.