Jim Causley Pontiac, Division

JIM CAUSLEY PONTIAC. DIVISION Jim Causley Pontiac, Division Jim Causley, Inc. and John P. Wittbrodt. Case 7-CA-13577 December 12, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBHIRS JENKINS AND PNIOI..O On September 19, 1977, the National Labor Re- lations Board issued a Decision and Order in the above-captioned case,' finding that Jim Causley Pontiac, hereinafter called Respondent or Causley, had interfered with, restrained, and coerced em- ployees in violation of Section 8(a)(1) of the Na- tional Labor Relations Act, as amended, by dis- charging2 John P. Wittbrodt on December 7, 1976, because he complained about conditions at work and filed a complaint with the Michigan Depart- ment of Public Health, Division of Occupational Health, hereinafter called MIOSHA. The Board or- dered Respondent to cease and desist therefrom and to take certain affirmative action. Thereafter, Respondent filed a petition for review of the Board's Decision and Order and the Board filed a cross-application to enforce said Order with the United States Court of Appeals for the Sixth Cir- cuit. On April 23, 1980, a panel of the court of ap- peals issued its decision" remanding the case to the Board for further findings of fact. The court found that there was substantial evidence in the record to support the Board's finding that Wittbrodt was en- gaged in protected concerted activity within the meaning of Section 7 of the Act in complaining to management and to MIOSHA with respect to con- ditions of the workplace. The court further deter- mined that there was substantial evidence in the record to support the Board's finding that Re- spondent knew that Wittbrodt had filed the MIOSHA complaint, and that activity resulted, at least in part, in Wittbrodt's discharge. Accordingly, the court concluded, in agreement with the Board, that "the discharge was based, at least in part, on Wittbrodt's protected activities rather than on poor productivity and poor work habits as claimed by Causley Pontiac." 4 However, since the Administra- tive Law Judge and the Board did not make specif- ic findings with respect to Causley's knowledge of '232 N.RH 125 2 Respondenl's December 7. 1976. personnel actilonl with respect to Witthrodt was termed a "lay offT' h Respondenl and a "termination" tr "discharge" y the Board ['he courl t dclermined Ihal Ihere su as sutbstan- tial evidence to support the Itiard's cnnclusion that Witbrlodt sits dis- charged 3 Jim Cuu /luv P'nrmiinn. 0Dioinl Jio C u l. In- \: L. RI , 621) F 2d 122 (6th Cir 1980) 4 Jin Caurnl' Pntjitr. iupru al 127 253 NLRB No. 101 the nature of Wittbrodt's activities, the court re- manded the case to the Board for further findings of fact to determine whether Causley knew that Wittbrodt's activity was concerted in nature. The Board accepted the remand and advised the parties that they could file statements of position. Thereafter, Respondent filed a motion to dismiss the complaint and a brief in support thereof.5 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 Respondent's state- ment of position and the entire record in this pro- ceeding, and for the reasons stated, infra, hereby concludes that Respondent had or should have had knowledge that Wittbrodt's activity was concerted in nature. In its statement of position, Respondent con- tends, in substance, that Causley did not have knowledge of Wittbrodt's concerted activity on the basis of the following: (1) there is insufficient evi- dence in the record to establish that Respondent witnessed, overheard, or was told of employees Chiotti's and Wittbrodt's conversation during which the agreement was made to present manage- ment with a common grievance; and (2) it would be improper for the unsigned plural version of the MIOSHA complaint form which was served on Respondent to be considered evidence of actual knowledge since the complaint form was altered by MIOSHA in order to conceal the identity of the complainant. 6 Accepting the court's findings and conclusions as the law of the case, we are now called upon to de- termine whether Respondent had or should have had knowledge that Wittbrodt's activity was con- certed in nature. After duly considering the record, we find that there are sufficient facts in the record to support the conclusion that Respondent knew that Wittbrodt's activities were concerted in nature. In its decision, the court found that Wittbrodt's ac- tivities were "well within the definition of concert- ed activity set forth in Guernsey-Muskingum. " 7 In s Responident's motion and hrief in suppl)rt hereof wAere accepted h5 the Board and treated ias Respondent's satemenl of position accord ance with Sec 10246t(j of the Natirnal I aor Relathons IBoa.rd Rules aid Regulations, Series 8. as amended 6 Since the record indicates that at least tt of the charge, icoltained in the MIO()StA complaint ere irade eclilsiXselJ by Witthrodt to man agemert, we fail to see howu Wltthbrodl' identity could hle been conl- cealed from Respoindent merely hb transforming he language in the complaint frm from "I"' o "we " Clear, It I, reaonahlbe to infer thal \itthrodtr soulmd have been Identltrild a a coinplainanl in all5 c.irs 7 .VL R B. s (siurns l-.Wu.Aingurm I:l'clri (-ip'ra tiv. ii . 285 1: 2d K (6th Cir Ih60) In this cse. Dli)k IhoLcr, ain employee of the respond- ent, uias discharged purportedll) for ci .le finIi ing the receipt N mani agen lent of itrillplainl s with respecl to the hiring of a nu alld Ilnepeir l ( nlinuted 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that case, the court held that, "[I]t is sufficient to constitute concert of action if from all of the facts and circumstances in the case a reasonable infer- ence can be drawn that the men involved consid- ered that they had a grievance and decided, among themselves, that they would take it up with man- agement." Review of the record reveals that Respondent had sufficient reason to believe that Wittbrodt's ac- tivities were the product of protected concerted ac- tivities and not individual action. First, Respondent stated in its exceptions to the Administrative Law Judge's Decision under the topical heading "Re- spondent's Knowledge of Wittbrodt's Alleged Pro- tected Activity," that the plural pronoun "we" in the MIOSHA complaint form clearly indicated "more than one complainant." Since the court, in agreement with the Board, found that Wittbrodt's filing of the MIOSHA complaint form was at least part of the reason for his discharge, it would be anomalous, in the face of such a bold assertion, to conclude that Respondent did not know that Witt- brodt's activities were concerted in nature. Second, the MIOSHA complaint form specifical- ly identified the area of the shop where employees with Wittbrodt and Chiotti worked; listed the job descriptions of the two nonmanagement employees enced crew forema i. he courl fund that several memhers if Ihe work crews discussed the maltter amonlig themselves, and finally each f the members .of oe cre wcill separately to voice their complaints tI mall- agement The court ultimately ruled that Boyer had been discharged he- cause of his con eried actliviy il colneclion ith his complainiillg to nlanagcIltll .ahout tile hirinl g of the c\s foreman (;ulrn se-tluskingum f'Ilrctric Co-operativs Inc. supra at 12 Cf Carbet Corporation, 1' NI Rlt 92 (lq1971), enfdl KO IRRM 3)154. h 1 IC 12.845 (61h Cir 1972) I (urbet C(ororarrion the lBoard frOLSid thit tIh respondent urlawfully discharged employee Leonard Cyhul as a result of his colccried aid union ict isies The court enforced the Board', addi- tionlal finding that Cybuls comrplaints to manlilagement with respect t ;ail inadequate hop ventilation systenl c nstituted ploetted concerted actli- ity. ad concluded hie Cyhuil's discharge was ilaliv of Sec. X(a)( ) f the Act rrespecti e of the respondent's knol nledge f Cyhl's union ac tivies I lh HoIlrd cIrnchlidl d that, silnce "the inadequate venitilatlnr s, stern had lg been the Slhject of coriplaints by Cybul a olther em- pllryses, e are isaisfied hal Respoi dlent was suffiCieiCtl a nrc of tIre concern over the eitinti steri t charge it with knowledge f lth concerted atiure of Chybul's clivitics ( irbe ( rporlo, upra it 8X2 alleged to be exposed to the hazards; included paint fumes as one hazard complained of;9 and included the statement "[W]e are having headaches every day from working here."1 0 Third, at the hearing Wittbrodt testified on direct examination that he, Rice, and Ross, two co- workers in the body shop, discussed and com- plained to each other about excessive paint fumes and the body shop ventilation system, and that on more than one occasion he heard employees Rice and Ross complain about the same to Bert Strick- root, the body shop manager and Wittbrodt's im- mediate supervisor. Wittbrodt further testified that he and Rice together complained to Strickroot about the ventilation system in the body shop. Based upon all the foregoing, we find and con- clude that at the time of the discharge Respondent knew or should have known that Wittbrodt's activ- ities with respect to his complaints about condi- tions in the workplace were concerted in nature.Accordingly, we reaffirm our findings, con- clusions, and Order in our previous Decision and Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby reaffirms its original Decision and Order in this proceeding reported at 232 NLRB 125. l' It should be nloted thiat Resplondent rceived, during the late sunimer and early fall if 1976, all least seven individual complaints ith respect to cxcessi e paint fures ill the bhoy shop froil at least three bd) shop cm- plo ye " Thte rigial letter f coniplailt ihichl Wilthrodt sent t MI()SHA and tIo oither golverilnllial gencies tates ll part thtt "IH]e (Chiotli) anld I togtiher hl henl talkinlg tI) the scr, ice manager of the body shop oitlh lio results." Lurther, IhC letterl sitte,. "I ant ritilg you this letter hecat, l e halL tIridl it gt re llts froin the setrice manlager illd Mr. (ausle) hiims elif writi nIr satisactioln" Ihus, althoiugh the MI()SHA for ill itself prov ided the pilraill frirm of language. hcre clearly is a hasis ii facl for tile cnclisilin that Responldernt knes r should have knoLii that tle plural was accurte ill this case I e court full lIert Slrickrio t be Wittibrodt's imnlcdiate super- visor, illd, as such. Strckroot' klvI cdgc of employee cmpli s alld C(IlcCrl Cd aL tiV u is i lll ulahle t Repr llfdilll 696