251 NLRB 313
Hawthorne Mazda, Inc.
HtAWTHORNE MALDA
IC.
. 1
Hawthorne Mazda, Inc. and Daniel A. Jaques. Case
31-CA-8946
August 19, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.I.O, AND
TRUES)AI E
On February
14,
1980, Administrative
Law
Judge George Christensen issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief and
Respondent filed a brief in opposition to the Gen-
eral Counsel's exceptions.
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, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent did not unlawfully interrogate employee
Daniel Jaques concerning his union activities and
sentiments. The Administrative Law Judge further
found that Respondent did not violate Section
8(a)(l)'of the Act by discharging Jaques on April
20, 1979. The General Counsel has excepted to
these findings. We agree with the Administrative
Law Judge, for the reasons stated by him, that Re-
spondent did not unlawfully nterrogate Jaques in
violation of Section 8(a)(1) of the Act. However,
for the reasons set forth below, we find merit in
the General Counsel's exceptions to the Adminis-
trative Law Judge's failure to find that Respondent
violated Section 8(a)(l) of the Act by discharging
Jaques.
The events leading up to this procedding are as
follows:
Daniel Jaques was one of six mechanics em-
ployed in Respondent's service department. Prior
to March 1978, the mechanics were paid at a com-
mission
rate of 45 percent of the total labor
charges. Thereafter, Respondent instituted an "effi-
ciency pay program" under which mechanics were
paid on a sliding scale determined by the ratio of
the mechanic's billed labor hours to his total sched-
uled work hours.2 Under this system, the mechan-
ic's pay could range from a high of $7.90 per hour
to a low of $6.90 per hour, depending on the em-
I AWe ll*, re:jctl RceponrJerll'% motolln to t rike he (ilnerall Cou .llcIl'
,
cxccpli ons
w1', scnilor mlcchanic. , StJrnl\: Kino,hita lanld I errs Hei1i.. ' ,re I1no
affected h
the n
p
sstern
251 NLRB No. 38
ployee's efficiency level.:' The net effect of the
new pay system was to tie the mechanic's rate of
pay to the level of service work.
Since the pay system's inception, Jaques had
voiced his opposition to that systemn on almost a
daily basis to Respondent's service manager, Phillip
Kapsimallis.4 Jaques' concerns about the new pay
system were shared by mechanics Darryl Stogryn
and James Mitchell who similarly expressed
to
Kapsimallis their preference for a return to the
former commisssion system. Kapsimallis testified
that when Bob Keefer, Respondent's vice president
and general manager, walked through the ser ice
area, the mechanics would complain about the effi-
ciency system in voices loud enough that Keefer
could hear them.
Sometime around March
1979.'
Jaques spoke
with Mitchell, Strogyn, and another mechanic,
John Delperdang, concerning pay. scheduling days
off,6 and the absence of a changing room. and se-
cured their authorization to act as their spokesman
in seeking to persuade Respondent to correct the
perceived problems in Respondent's working con-
ditions. Thereafter, Jaques spoke with Kapsimallis
about the possibility of having a service meeting to
discuss the pay and scheduling issues. Jaques made
it clear that Delperdang, Mitchell, and Strogyn
supported the holding of a meeting to discuss these
issues. Kapsimallis agreed to schedule the meeting,
to have Keefer attend, 7 and to make attendance
manadatory. The meeting was subsequently sched-
uled for April 19.8
On April 17, Jaques drafted the following peti-
tion for presentation to Keefer at the service meet-
ing:
We the mechanics of Hawthorne Mazda have
taken steps necessary to form a union in order
to have some voice in scheduling of days off
and our pay rate also due to lack of leadership
' Thus, If a mechanic
orked
tI 80)-pcrerit l fi ill,
i
1%e .1-
5,ls
paid
he total
number of hour*, he
rkcd during a 2- cck pcrlod at
Sh )90 per hotur
If he
rt rkt.l
1 t iX)-pcrcelt effie-lcni 5
.
I-e \ .i, paid i l
57 1)) hour
q In a JuliC
1978 mcciln
t g if scrvi-c cmploce,, a
lc e
,ls
0k1
i1
ill
schelhcr Ihe nimchanilcs snilttdl to1 CilltlInuc
the
ffiwicllc
sslIcll
111
onl
mechanics precntit
crc Jaqucs, iefil
11,11 Kilmlo ELi
Jquces ,n
the onlk Wtt .ag.allnsl contililatiil
tf Ithe ssiei
All dares hrcinaftel arc in 1979. illcu oilherw sc
illnlic.lltd
()ll:
HBcmis and Killshlila scrc regularil
glIC
I rlida; sanll Satill-
dalss o1fT The other mcchilnic, fill that the
ilft,
she ll he r otaled
2 Jaqucs pecfiicall! requestled Kecfcr'
prcec
.c
h
i.
e
a
It, did
iot
think that
Kapsitiali
s, poe,,ced thel aithorit!
rlnC. sls I
Illitkc
.
lite
chalnges sutgit h
the mnlchanics
8 AcC(c rdin g
t(
KalpilllllJh,
tlt
freqlrls
i
Ih I
I
lChe
l
t1.1
S'
illt
plaillt cliceriliig p;s andil s<lhcdllliIIg IIcca.isei during Mal,
i 1d1
i
piil
197') Kapsillmallis tcstified
ilhal.
hc
v;ssa lil\ ig a hardl imC dIcahliig
1llh
ti
Itlliechrlics A1 t,
tillte aldi
ti hlllei
thi,
dI itc,ll
1
l iII
tact ti,
"thle l Ilc haitliiis
rC talking to acli 1itc1
,iio-C jlc.
id
[ il
I
11111g
1
grollm
r "
tlllIcr
i lkng
lore s*1ilhill thcrluisl,
ss
ui
s-alledi
chchli g
gilaiisl rila .lgetlt
I
l
i
.
iA
HAWTHORNE
MAA. [NC
3l 3
114
I)I'CISIO)NS ()F NAII()NAL LABOR REL.ATIONS BO()ARI)
at Hawthorne Mazda. If there was some coop-
eration between management and mechanics,
this would not be necessary to take such a
bold step. We (mechanics) feel our working
conditions and discrimination are also reasons
for this action. We (mechanics) feel that 2
years to change our working day schedule and
I year to revise our pay program is time
enough. So we (mechanics) intend to inform
the proper authorities such as Mazda Motors
of America, Consumer Affairs B.A.R., the Na-
tional Labor Board and Prince Chrysler Ohsa
with all and any infractions which appears on
order 7-76 mercantile effective date 10-18-76,
section 13 A & B and 15 A+B+C dealing
with changing rooms and working tempera-
tures.
Between April 18 and the opening of the meeting,
Jaques showed the petition to Kinoshita, Mitchel,
and Strogyn and solicited their signatures. Mitchell
and Strogyn signed the petition. Kinoshita refused
to sign it, although he agreed with the substance of
the petition. '
Just prior to the meeting, Jaques asked Kapsi-
mallis if Keefer was going to attend the meeting.
Kapsimallis replied that Keefer could not attend
because of a previous engagement. Jaques respond-
ed that "there [was] no sense in . . . having the
meeting because the subjects I wanted to discuss
you cannot do anything about.' 0 Despite Keefer's
absence, the meeting began as scheduled. In attend-
ance were all the mechanics, except Delperdang,
several nonservice department employees, Kapsi-
mallis, and Parts Manager Ed Lampron.
During the meeting, Jaques raised the issue of
the pay system and explained the reasons why the
system was unfair.
Kapsimallis informed the me-
chanics that, while he could discuss the efficiency
program with them, he had no authority to alter
it.12 Jaques also brought up the matter of schedul-
ing days off, opining that it was unfair that some
mechanics had to work weekends while others did
not.'
Both Strogyn and Mitchell concurred in
Jaques'
remarks
concerning
the
scheduling
" loth Kinoshita ald t
1 Clllliis hald app.iarttl
indicated 1to Kapsiniallis
thait I hic
a.h llce of ai changing rotIlil A is a probliti
i" Ilcause
it Kectfer's absence. Jaqtes decided to retaill te
pllltill
until it could be presenltedl pers als to KcTfer.
i' ica;isi the
cutorly eonl
paid for witarra1ity tork actuall5 per-
hIl1ItId
i
ltl ItII
aliii
iA
i
llIt' . tilt
TlleChal liC's
ffiiltlC
ratio
siwl
rld
uflfl t h eln i pltiular ob ilok
cd a considerahle iltiulint of l diaginotic
i
t Ihe. i io l
sis turltihr tIffctId if tle sri
c
ti
e \orkload decreased
':-
:
K
lriil;ll
I til d( t. tiieclanics that Keftr had said; that the pat
schietitle \t outld
irilla;in as is
]' Salurd;y is not considler'd
tlesirabl. sworkdtia
hecalu
te sCr ct
tdiCralluiteIll ct_ ,. e
ar
lta.Litd becas'
the parts ttealers close iat I p
nIakinlg it dliicilt io do crtain ct' ice v ork
fter that litte
system. 1 4 Strogyn added that both the efficiency
and scheduling systems should be changed. In ap-
parent response to the mechanics' criticism of the
scheduling system, Kapsimallis told the mechanics
to prepare a rotating schedule which he would
present to Keefer. 5
The next day, April 20, Jaques encountered
Keefer near the parts department and asked him
why he had not attended the service meeting the
previous evening. Keefer informed Jaques that
something had come up precluding his attendance
at the meeting. Later that day, Jaques again spoke
with Keefer. indicating that he had some problems
to discuss with him. Keefer replied that Jaques
should present the matter to Kapsimallis for initial
resolution.' 6 Keefer then turned and went into his
office. Jaques followed Keefer, stating that he
wanted to discuss the matter now, Jaques proceed-
ed to express his dissatisifaction with the pay plan,
asserting that the mechanics should be punched off
the clock when there is no work. Jaques explained
that the mechanics "felt the work schedule and the
pay schedule were unfair," and added that the me-
chanics had voted at the meeting to change the
present scheduling system.' 7 Jaques next referred
to
Kapsimallis
as "incompetent,"
stating
that
Keefer was also incompetent for retaining Kapsi-
According , Kpsiiallis aind Siog ,,ii
Jaquil l pcaldli
oted lil
'
pronlltun "'ic"
throlughout
Ilhc tle tig
i
i iscussing he pl\ alld
,chtdul
ing issues. Because of Jaques us
iof ".c"
alld his r,ile i
leading tie lI-
cllsslils Kapsinallis assunled( that the iother mechaics,
erc "basicallk
]ltlilg DI)all a
it for hem"
IIi tn
regard. Kapsilnalis
bsers cd ")Dai
·
tllletd It discuss the pai plan
lti
JKeefer] and thait apparcent
he
wlas speaking ftr he other., itFe
it thle
ther [ic] mechaniici
"
'
uring the met.ting, Jaques Iold K apsi lallis thl he (uas ilc, onlpe-
tcl
hillC
he ldid hia e the pocr
it
ITlakt
ttie canges
.Ihatl
crc
needed
According t
Kapsitallis. [Jaques] tried to cIlrir i
tie effect
tl
di I didll' hae the authority t)l change certain lhig,,
r to liakl
c.r-
IIi
.tchaiges
lie tried
io make
i.
tfakt
rilae knilicrsili
ithal
te
.aiil't
sa\llg I t aI'i c.apahl
Of diig
tile ]1h.
ilst tihait
t
it'l
h,
CIOeiiUghlih
aulhoirit\ to do the riobh" i filact, Kpsiiallis had the athorirtN
rIMake
tie chilllaic
bul di I l
tlot
so itorni
tilc ltl ec illicS
in[nplIoycet glticalaices t.cre appareiltl
hadltted trituli ic depar
Itllt heads
17 Keefer testified at
tie. earing ill this mattcl that Jqucs did
iot rise
th. terilS '"e"
alid "rncchali c"
I
rclallllg Iti
nclmplaints cncerillg
the pa, alid schiedulilg s)tenl ll io c\.cr.
his; affids it signed 1 ll olitlh
;after the meeting with J aqu.s Keefer slater
thal J;aque
told
lim "11/ the
,rlthunici v, were upset vi,
ith
cth flictec: nretlhiod ift pay plail
(Emphasis
supplied.) We
ict
ttie affidavit, t, hich corrobo.rates the substance
f
Jaqlcs tCetinilll
, ;i
a; Illtre accurate relcctilon itilll
rcou llll
g
' lthi
c .,llts of the April 20( iltetillg tilal th e tletinlony prosldcd h
Keefer at
tie hearinlg
\'e
note i, this regaid that Kefer.
hl ern confronted at the
hearing
itll his prior
ttCllnct , impl pI staltd t1that .he had
recollec-
lion ,,if the nlattlr W'.
further note thait te
Amiriistrati,t
a I
Judlge
credited Jaques testinmlon
that he inftlrnrld Kefer that
ti' othecr Ilec-
Clhalicsi had i
,ted
at tie April
1
'
Ill etirig for the cheduling cht;lge
I lilht r hbuttressing oull Cult IIIutOII ill
II,,
resplct
It tiec
t
ioS[i
ofl1n
Slrogn /Irld Kalpsillil
Ill Jaque'. thiriliughrou t
April 1t7it rlctling,
illterclhgeabl
used tihe prollils 'c""
arid "L,"
ill rl;ltirg the Citl-
plainlls cO.llctrill g tll p
ai1d schelling
",'
tll
Jaqle'S
professeCd ret
crerice I, the "rlccharli"'
ll thc mntrlg sith Keefer. thrcftore. is fuill
cottistelt t ith hi
erlier
rlllarks
HAWTHI()RNE MA/I)A. INC'
mallis as service manager. '
Jaques also criticized
the sales department and its manager, Young, for
dwindling sales. 9 Jacques called Keefer incompe-
tent and an idiot for retaining Young in that capac-
ity, asserting that Young should be replaced with a
sales manager who could increase sales. 20 Jaques
urged Keefer to increase the advertising budget as
an avenue to increase sales."
The discussion then apparently turned to the
subject of wages and a comparison of union and
nonunion wage rates. According to Keefer, Jaques
stated he did not like unions adding that he could
not discuss the subject of unions while on the time-
clock. Keefer replied that he neither cared nor
knew anything about that. The two then discussed
the labor ration, with Keefer explaining why the
Company could not return to a percentage labor
charge exceeding 42 percent. At the end of the dis-
cussion, Keefer informed Jaques that, because of
his lack of respect for Kapsimallis and his attitude,
he was terminated for insubordination. 22
As noted, the Adminstrative Law Judge was un-
willing to conclude that Respondent's discharge of
Jaques violated Section 8(a)(l) of the Act. In
reaching this conclusion, the Administrative Law
Judge noted that, although Jaques expressed the
mechanics' dissatisfaction with the current pay and
work assignment systems, he never presented the
signed petition to Keefer; he never made it clear to
Keefer during their meeting that he was authorized
to act as their spokesman in presenting proposals
for changing the pay and scheduling systems; and
he never made it clear that he was doing other
than persisting in presenting his own personal
views. 23 The Administrative Law Judge therefore
concluded that Respondent discharged Jaques for
his disrespectful attitude and criticism of Respond-
ent's management, rather than for engaging in pro-
tected, concerted activities. For the reasons set
forth below, we disagree.
Jaques apparently user
the term incompetent
at leastl fire or six
times in referring Io Keefer. Kapsimalh,,,
and Sales t)epartment Ma;nager
Young
At one pinl. Jaqucs stated thai; there v. , a lack
f lealdership in I he
Company,
and suggested
that
Kaplmallli,
he giveCi more authorit!
Jaques indicated thal the lack of leadershlp affected cmploxees produc-
tivily, thereby reducinlg their
i;ages.
'
A
some point after the commencementl
of the meeting, Young
strpped into Keefer's ofice and remained
hre for Ihe hbal;nce of the
meeting
2
I
increase in sales
ould,
f coltire, redoiulnd to the belefit of the
meclhalics incce it r, ould increise the amount
f warralnty stork. thcrceb
impror'ig he efficienc ratios.
Al solle poiIII during the dicussioi..
Keefer uggestcd that Jaques
step hiid
hi, desk and .l aket o
r if hlie thought he culd do ; hbetlcr ioh
,f ruiliiirlg Respoldellt's i
apCriiol At Jlill pllmlt JaiqllUes lpedl
bchil
Ihe dek alti relilll.id lt re ,o
the halliice of i th
e
d1lM_11ii
I.h
[hl
mcC tig Colismlilld I hour itld 50 nO
llulll
KCefetr
tt,lfied
Ithat
(he Illeetig 'a.'ils c
ilm
tl
a
1that
1
1
1Md
Ililll
cillilig
l
it'
t
dnitc
intriii
e I a,
J l tige
itticl ittle Itlil Keert
h d "rCil
F
-
abl
interpreted 'wLc
' , i a figare
I 'pieL I JutiCs
a
uIitIg
Analysis
Section 7 of the Act guarantees eimployees the
right to engage in "concerted activities for the pr-
pose of mutual aid or protection." II is axi\onialic
that employees who band together for the purpose
of presenting grievances to their employer arc en-
gaged in protected, concerted activity within th
meaning of Section 7.24 It follows that an individu-
al employee's attempt to induce fellow workers to
join in a petition regarding a common grievance is
protected activity. 25
Similarly, an employee en-
gages in protected activity when he presents to the
employer grievances on behalf of other employ-
ees. 2 6
In light of the foregoing, it is clear that at times
material herein Jaques was engaged in activities
protected under the Act. In this regard, Jaques had
been instrumental in securing the mechanics' sup-
port for confronting
Respondent's management
with their concerns regarding pay, scheduling, and
the lack of a changing room; in focusing their con-
cerns in petition form; in securing a meeting at
which those concerns could be raised and ad-
dressed; and in presenting those concerns to man-
agement in a way that conveyed their group
nature. Thus Jaques, prior to his meeting with
Keefer, had secured the signatures of several me-
chanics on a petition expressing the mechanics' dis-
satisfaction with the issues noted above, and indi-
cating that the mechanics were in the incipient
stages of forming a union. The drafting of that peti-
tion coincided with the mechanics' designation of
Jaques as their spokesman in communicating to
management the substance of their grievances re-
garding working conditions. Jaques' role as spokes-
man for the mechanics is reflected in his leading
the discussion at the April 19 service meeting and
in the concomitant acquiescence of the other me-
chanics in his substantive statements at that meet-
ing regarding the pertinent issues. Jaques was con-
tinuing in his capacity as informal spokesman when
he confronted Keefer with the substance of the me-
chanics' grievances. That Keefer undoubtedly real-
ized that the other mechanics shared Jaques dissat-
isfaction with current working conditions and that
he knew Jaques was speaking on their behalf is re-
vealed by his admission that Jaques stated that
"[A]11 the mechanics were upset with the efficiency
24 See V .LR
B X H'ahlln,'it. I ll-
num ( '..ip
}mi Im .-
IL S q
*" On, i-(
n
k
u
Ic-ttr rc/u. (ir-prrulo/u
X [I R
1
4
e 'd
I .
1t65 t4th t('r
ltql
.Sutll Rt-
iL/lit'
it I
t
tr
,,,ll
A.I, R B, 2lb 1 2d 32q ()l 'i
1*
l
3)
.
1 R B s (ut-rr'
tlir,
.( ,
(,hIilt-
,
,,l.
,
5 i 2o
Xi (hl
C'r
l
t Ihl;l
ugh II 1li/ll
(
Itr/?r.ull.
\
\ / R B . 414 I: 2d 1 1i4s
1148 i
1(d ( i
1
)Q
, I
3 Ilh
I)ICISIO()NS ()1: NATIONAL I.ABOR REI.ATI()NS BOARD
method of pay plan." Furthermore, the Administra-
tive Law Judge credited Jaques that he consistent-
ly used the word "we" discussing the common
grievances. 2 7
In view of the foregoing,
we find that Jaques
was engaged at the time of his discharge in the
protected, concerted activity of presenting to Re-
spondent's management grievances on behalf of
fellow mechanics. Although we find that such ac-
tivity was protected, there remains the question of
whether Jaques, because of his alleged misconduct
during the course of the meeting with Keefer,28
forfeited the Act's protective mantle.
While Section 7 protects the right of employees
to act in concert for mutual aid or protection, not
all forms of conduct literally within the terms of
that section are entitled to statutory protection. In
deference
to the rights of employers and the
public, the Board and the courts have acknowl-
edged that activities which are violent,2 9 unlawful,
or in breach of contract are unprotected. 3 0 How-
ever, recognizing that emotions may run high
during the course of a labor dispute, the Board has
evolved the standard that an employee does not
forfeit the protection of the Act unless his miscon-
duct is so violent or of such nature as to render the
employee unfit for further servivce. 31
Thus, the
Board has long held that the use of strong lan-
2i
W e
l
tind
1
n,
basis ffr
Ic
Admi niitr atiti c IL.ass JudgI's C Iconclusionl
that "Klcfrr
could reasonab;ly interprcl
the ull
of 'e'
y Ja;que
as
merel
figurC of p
clhi
AII r valcd a;t lls
14 and
17. supra. J aqucs
inlcrlliOall
I.cd Ihe trnls '
e
ari
d
tl " I
co mmI ulCatC It Respond-
cnII'% rllIanagcirril! le
rnutuiaily
of the nlechaii
s' coiicerns regarding tile
islses 1' pay.
s
chleduling, and changini g roortrr
It is undisputed thal Jaques
sLs'cd
l his rlle dring tlhc ser cC nCmeeting al d hi
meclinug with Keeftr
LI thait of prtk.snan
t
fr
lie itechanics a role which had
ei lacil . if io t
expliclt, upprt of his
i
Iflllw nclhaites We therefore disagree wilh
tlh
AdiriiiilratiC I.I aw Judges' fiindiing Ihal Jaques "n'icer made II clear hce
'asl di1g olhrl
Ihilan persistiri g
l
lliii prerCilliig hi
o
n
i
i. s
L' i
" ' his fllld-
ilg Is lot
ioly unitetnhle ill light
o
of the recrrd cidli'ce disclosed
above,
hut ignollre
lie fact thai
t
Kapsimallis anrd lnamprl.
both admilted super-
1,ir.
ecIC
i,
a
re Ithat Ih e
iiher tieLcha iic s sharcd Jaques' opprositoll Io
ti' pa
alld siI tedurliu
slsti1111i
api alis
ih
, Ii particular. hd a ISUIiCdl
froill JlqicX' dolillall
c (if f tIhCe rvice nlceting, his use ldf "we" ad
"us"
In du.suillg pertillll ilt
ill thal meeting, aild thle acquiCsCCeice rof IhC
rtueli'hi c
.
i
ill JaqLIe''
lltlal llie slatteru n'1i1si
COlIUCrliitig theC notCd issues.
ltha Jaqlc
.t;als
lctri1
as spokik rllran for the itieC r
m chatliC
I]dLer
wcll-cr .lih
ihcld Board law. , ltie uprls' sor'
knowledge
f tIhe cinccrl ted
I
fltl
r
e of Jquics alti
Call
ti
ci
he
i
mreputed IIo Keefer SeCe. Cg. PegIcgrlni
Itis. 14n r , lIt . 20 NI R
1220 (1978).
I
Fartli'riore. is
ited earlier.
the itiechalaIucS hd aired their
grievancrtes ill voicS loud erIuIgh to he
ti-a d
h
Keefer as lih walked
hroagh
thIe sernicc area
A
i\s tedlc
,
l
t Ire Adrninist raitisc I aw Judge fOill
I hat J aqucs was dis-
clharged hiJUsu f risi "disrcspctfl
ll
d
altiltde Iorlards Corllipal tilaiage-
IrTn il rid i tietipet atc airiacks
o
ii Corpan
officialIs, policies atd practices
I Ie' Board
a h
has hltll
ilat
serious alt, o
rli, Collduct
urccuirrilng
durirg lieh course of
strike nrma) disqualify a striker fronm tihe protecttio
of tlh Act See. e.g ('
ir
,ti
(( lut. it,., 2017 NI
IRB 3(14 (I)
7 3)
S ..
g
V 1 . Ii I
l
t t in g t i i
lI
t,,,
iiun
( '(_
u pru
See I-iri J
ltM
IiiA
(iorpul
iv, 232 NI R
772
177):. )eii
& Krnitp
'i
i/ill turin.
111( . 221 NI H IR
7,
.115 ( I 75 ): "l I e ioira lI
has
hel d thait offecnsupcs , ' [Lgigr
dlaintaloui
N
it oipprtboiurs renuimrks uttered
dliliing
lih i core
it f pro llltecte
d aLiitiet
s
ITll
1101
r
r' ertl Cll
ie
ar I
c
Is frlnt
tIe A c's pr
Itt
eitlimi
iles
O
.ll
t
lil
l
aglalti.
iilet'.
lr
exrtreTe as to
lcrledtl
li
illiuliililj iil'
tr
l
it ict sir, ice
guage in the course of protected activities supplies
no legal justification for disciplining an employee
except in those circumstances where the conduct is
flagrant or egregious. The protection of the Act
has been similarly extended to misstatements made
during the course of protected activity unless they
are deliberately or maliciously false.3 2
Considering the context in which Jaques' com-
ments were uttered and applying the foregoing
standard, we find that Jaques' conduct was not so
egregious or outrageous as to deprive him of the
protection of the Act. Jaques' criticism of manage-
ment occurred during the course of a meeting held
in Keefer's office, rather than on the shop floor
where it could have negatively affected Keefer's
status in the eyes of other employees. 3 3
Further,
Keefer acquiesced in Jaques' presentation and dis-
cussion of the mechanics' grievances thereby serv-
ing, in effect, to convert the meeting into an infor-
mal
grievance
session.
Indeed,
Keefer
invited
Jaques to step behind his desk and to suggest what
we would do were he in charge of Respondent's
operation. In these circumstances, we do not find
that Jaques' critical remarks were indefensible or so
out of context as to render him unfit for further
service. 3 4 We note that Jaques' criticism of Re-
spondent's management, including Keefer, was part
of his overall concern that the lack of leadership
perceived by him at Respondent's shop was nega-
tively impacting on car sales, thereby reducing the
amount of warranty and/or repair work available
to the mechanics. Such a reduction in the service
workload would necessarily diminish the mechan-
ics' rate of pay under the efficiency system. Thus,
it does not appear from the record that these re-
marks were uttered simply to ridicule or denigrate
management, but rather were seriously offered as
an explanation of why the efficiency pay system
had been instituted. Jaques' comments were there-
fore directly related to the activities protected by
the Act, and, hence, were part of the res gestae of
those activities.
Based on the foregoing, we find, contrary to the
Administrative Law Judge, that Respondent violat-
ed Section 8(a)(l) of the Act by discharging Jaques
for engaging in protected, concerted activity.
e
Se
Jus h
ot
ra/i,
Ire., 201 NIR B 21(
(19731 See alsio VI. R H
('it;mi('n loiu vpur
u.
ire. . 4)0
i 2d12 10)24 1029 30 1 6h h C'ir 174)
': rth laki1g1. sipra. 772
:
See lrch
I il
iLkI, Irupru
(
t
il
cc's reni-I rks, lihar n tati agcntcl
wIsas
IIIL:tmpcnl
al d hal
oh
li'o itnl
t
opa
ii
'.i'
til
l
t
i
n''.
fiund pruecl-
elt.
u-ic rer.marks relah id to ilte actris ties
hal
Bsr
proir leted ) Sec also
/1tr Poite
hur l ( ..
1
4
NRI
137{}
(
lr)'i. entfd 351
2
84 (7111 ( ir
IO ) (.
i
t
g
Ionl. liLi a
cltiil
l frs
sf''i l a "ho''
as'," urii t a grcanc [telil
It
so
tiltrageto is l il ref oi c l'
p
rth
r
r
t
e
cctl)
i
t
h
A lI)
-
HAW'THORNE MAZDA,
INC.
.17
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of the
Act, we shall order it to cease and desist there-
from, to offer Daniel Jaques immediate and full re-
instatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
position without prejudice to his seniority or other
rights and privileges previously enjoyed, and to
make him whole for any loss of pay or benefits suf-
fered by reason of the discrimination against him.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Hawthorne Mazda, Inc., Hawthorne, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act by discharging employees for
engaging in protected, concerted activities.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Offer Daniel Jaques immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole
for his loss of earnings incurred as a result of his
discharge in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 3 5
(b) Post at its place of business in Hawthorne,
California, copies of the attached notice marked
"Appendix." 3 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 31,
after being duly signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
"s See, generally, sis Plumbing
Heating Co., 138 NLRB 716 (1962)
Member Jenkins would compute the interest on backpay in accordance
with his dissent in Olympic Medical Corporation. 250 NLRB No. 11
(1980).
36 In the eent that his 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 Pursu-
ant to a Judgment of the United Stales Court of Appeals Enforcing an
Order of the National Labor Relaions Board "
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPIOYEES
POSTED) BY ORDER OF THE
NATIONAt. LABOR REIATIONS BOARD
An Agency of the United States Government
WE WitL.L
NOT interfere with, restrain, or
coerce employees in the exercise of rights
guaranteed by Section 7 of the National Labor
Relations Act by discharging employees for
engaging in protected, concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed by
the Act.
WE WILt. offer Daniel Jaques immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
and his other rights and privileges previously
enjoyed, and WE WILt. make him whole for
any loss of earnings he may have suffered by
reason of our unlawful discrimination against
him with interest added to the backpay.
HAWTHORNE MAZDA, INC.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN,
Administrative
Law Judge:
On September 20, 1979,1 I conducted a hearing at Los
Angeles, California, to hear issues raised by a complaint
issued on June 14 based on an original and an amended
charge filed by Daniel A. Jaques on April 23 and May
30.
The complaint alleged that Hawthorn Mazda, Inc.,2
violated Section 8(a)(l) of the National Labor Relations
Act, as amended (hereafter called the Act), by interro-
gating Jaques concerning his union activities, sympathies,
and desires and discharging him for engaging in concert-
ed activities on his and other employees' behalf. The
Company conceded it discharged Jaques but denied in-
terrogating him about his union activities, sympathies.
and desires, and denied Jaques was discharged for engag-
ing in concerted activities.
All dates hereinafter are 1 979. unles otherlce indicated
tHereinafter called the Compan
HAWTHORNE
MAZDA.
INC
317
3 . A)
I)fCISIONS OF NATIIONA
IABOR RELATIONS H()ARI)
The issues are whether the Company interrogated
Jaques coiicerning his union activities and discharged
hini for engaging in concerted activities.
The parties appeared by counsel at the hearing and
were afforded full opportunity to produce evidence, to
examine and cross-examine witnesses, to argue, and to
file briefs. Briefs have been received from the General
Counsel
and the Company.
Based upon my review of the entire record, observa-
lion of the witilesses, and perusal of the briefs, I enter
the folloving:
FINDIN(iS OF FACI
1. JURISI)ICItON
The complaint alleged, the answer admitted, and I find
at times material the Company, a California corporation
with an office and principal place of business in Hawv-
thorne, California, was engaged in the retail sale and
servicing of automobiles; that it annually purchased and
received goods or services valued in excess of $50,0(X)
directly from suppliers located outside of California; that
it annually purchased and received goods valued in
excess of $50,000) from sellers or suppliers located within
California who directly received such goods in substan-
tially the same form from outside of California; that it
annually received gross revenues in excess of $5(X),(X)0;
and that it was an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2 of the Act.
II.
TH'I
Al I FI.til)
t!NI:AIR I ABOR PRACTICES
A. Facts
At times material the Company employed approxi-
mately 14 sales and 10 service employees in its business,
including 6 mechanics. The six mechanics were Terry
Bemis, John Delperdang, Daniel Jaques, Stanley Kino-
shita,: ! James Mitchell, and Darryl Stongryn. Service
Manager Phillip Kapsimallis4 exercised general supervi-
sion over the service department. Company Vice Presi-
dent and General Manager Robert E. Keefer5
exercised
general supervisory control over both the sales and serv-
ice departments.
Prior to March 1978 each mechanic was paid 45 per-
cent of the labor hours charged for the work they per-
formed within each pay period. Beginning in March 1978
a new pay system was placed in effect wherein each me-
chanic's pay was based on the ratio between the labor
hours charged and the total hours of their work shifts
during the pay period; i.e., if the ratio was 80 percent or
below, the mechanic received $6.90 for each hour he
worked; if the ratio was 100 percent, the mechanic re-
ceived $7.90 for each hour he worked, with a sliding
scale based on other ratios. The income of the two top
mechanics, Kinoshita and Bemis, was unaffected by the
change; Jaques, Mitchell, and Stongryn earned less under
the new than the former system. Jaques expressed to
Kiinosf,
a '.,i
s,
the e
ior
Id
top riichani.li
e c ilIl was cla. iCd
a
. ,
xi
/ .1 tt llilCtl
coripatliy
UperVlor
and agcIt
A ri admleld
] cltliilp.aln
silpClN
r and aigtlnt
Kapsimallis his opposition to the new system6
and a
desire for restoration of the old system continuously
from its inception through April of the following year.
Mitchell and Stongryn, while less vocal than Jaques, also
voiced their preference for the old system to Kapsimallis
between April 1978 and April
1979.7
The new pay
system was in effect at the time Delperdang was hired.
The
service department
was operational
Monday
through Saturday and closed Sundays. The hours were 8
a.m. to 8 p.m. on Monday, 8 a.m. to 7 p.m. on Tuesday
through Friday, and 8 a.m. to 5 p.m. on Saturday. The
mechanics had fixed work shifts of 4 days on and 3 days
off, scheduled so two mechanics were always on duty;
mechanics
emis, Jaques. and Kinoshita regularly had
Saturday off.
Jaques, the most vocal and aggressive of the six me-
chanics, in March 1979 secured oral promises of support
from Delperdang, Mitchell, and Stongryn and authoriza-
tion to act as their spokesman in seeking to persuade
company management to restore the former pay system,
establish rotating shifts, and make other changes in work-
ing conditions (shop temperature and changing room).
Jaques then asked Kapsimallis to schedule a service
meeting so lie could present the position of the four me-
chanics on the various grievances and requested Keefer
attend.H He also asked Kapsimallis to make attendance at
the meeting mandatory.9
Kapsimallis agreed to all three requests and informed
Jaques the meeting would be held on April 19, attend-
ance by service personnel would be mandatory, and
Keefer would attend.
On April 17, Jaques drafted the following petition for
presentation to Keefer at the meeting:
Monday Morningside
We the mechanics of Hawthorne Mazda have taken
steps necessary to form a union in order to have
some voice in scheduling of days off and our pay
rate also due to lack of leadership at Hawthorne
Mazda. If there was some cooperation between
management and mechanics, this would not be nec-
essary to take such a bold step. We (mechanics) feel
our working conditions and discrimination are also
reasons for this action. We (mechanics) feel that 2
years to change our working day schedule and I
year to revise our pay program is time enough. So
we (mechanics) intend to inform the proper authori-
ties such as Mazda Motors of America, Consumer
Affairs B.A.R., the National Labor Board
and
Prince Chrysler Ohsa with all and any infractions
i ()rl Ihe groiunds ichcduIled hours during mwhich no work bias aailable
Acrc uitl/Cd I
clipuiling Ih
ratio,
arranly , ork did n),lt IncludC limc
'pCil
11 i iagliis.,
dtC
? Jacquesc and Solngryln' ttimony It Ihal
ffccI vas a corrohboratcd bh
Kapsinallih
Jaqies, hcliced Kapimallis Ilacked
lauthlrity tor make Ihc chnlrges hc
fou
rmllechlatic
dsircd
+ Itc
orrlnpan
rcelied on a vote h mechanlics Ilemi
and Kilnoshia ill
I' lor
f cortiiliuiig the ne,
sN>tnm (as iagail
Jaquei , oI l
no
ole
a a
Illelil
r
Il
prcious Near as gr luld for contlliing
the nc sytercm:
Ja;quc
,Wanlted I0 ilslure this time all the mchanrics
cre prcscnl
aInd
Noiniig it ii
ol
\aS i
galt
ilakell
FIAU'TfiRNF MAZDA, INC.
119
which appears on order 7-76 mercantile effective
date 10-18-76, section 13 A & B and 15 A+B+C
dealing with changing rooms and working tempera-
tures.
Signatures
Date
I. Daniel Jaques
4-18-79
2. James Mitchell
4-19-79
3. Darryl D. Stongryn 4-19-79
4. John Delperdang
4-20-79
Between April 18 and the opening of the meeting' °
Jaques showed the petition to Kinoshita, Mitchell, and
Stongryn and solicited their signatures. Mitchell, Ston-
gryn, and Jaques signed the petition; Kinoshita refused.
Jaques was unable to contact Delperdang and made no
effort to solicit Bemis' support.
All the mechanics but Delperdang, Kapsimallis, Ed
Lampron (parts manager, and an admitted company su-
pervisor and agent), Beverly Johnson (assistant to Kapsi-
mallis who wrote up service work orders), Jeff (parts as-
sistant), and Mary (service department cashier) attended
the meeting. Keefer did not.
Immediately after the meeting opened Jaques asked
Kapsimallis, who chaired the meeting, if Keefer was
going to attend. Kapsimallis replied he was not going to
be there. Jaques commented that the meeting had no
point, because when he asked Kapsimallis for the meet-
ing in order to discuss changing the pay system and
other issues, Kapsimallis told him only Keefer could
change the pay system. The meeting nevertheless contin-
ued with discussion of shop practices, problems, cleanup,
and other issues. While Jaques refrained from presenting
the
petition
to Kapsimallis
or discussing
the
pay
system, " he, nevertheless, used the term "we" in pre-
senting his, Delperdang's, Mitchell's, and Stongryn's po-
sition on the rotating shift issue and secured Kapsimallis'
agreement to take up that change with Keefer after Kap-
simallis learned all five mechanics present supported it. L2
Kapsimallis was not scheduled to work April 20 and
21 and planned to report the events which transpired at
the meeting to Keefer on his return on April 22.
The day after the meeting, April 20, Delperdang read
and signed the petition.
Encountering Keefer near the parts department the
same morning, Jaques asked him why he did not attend
the parts department meeting the previous evening.
Keefer replied he normally did not attend such meetings
and, in any event, some other matter arose which re-
quired his attention. Jaques said there were some prob-
lems he wanted to discuss with Keefer and asked if they
could meet during Jaques' lunch hour. Keefer told
Jaques to take up the problems with Kapsimallis' a and
went into his office.
'o Scheduled after completion of the April 19
ork shift, at 7 30 p m
i Because he expected to obtain Delperdang's signature the follol itg
day and wanled the main issue presented to Keefer, the only person
ho
possessed the necessarN authoritl
to take any action onll it
" Kapsimalhs
estified
hdie he had authority io grant that change he
did not .o inform the mechanics at the meeting
"a Keefer preferred to resol e any employee complailns or griesances
through his department heads
ilhoul
hi, having personal conlaclt
ilh
the complainant or grievant
While Jaques was having a cup of coffee that after-
noon near the parts department he stopped Keefer as the
latter passed by and renewed his request for a meeting.
Keefer repeated his prior response and went into his
office. Jaques followed him, stating he had talked to
Kapsimallis and wanted to talk to Keefer, and he wanted
to talk to Keefer then and there. Jaques did not present
Keefer with the petition signed by the four mechanics at
any time during the ensuing discussion, which consumed
in excess of an hour, but he did complain the existing
pay system was unfair, particularly in that shift hours
during which there was no work in the shop for mechan-
ics to perform were utilized in calculating the ratio; con-
tended the former system of paying mechanics 45 per-
cent of the labor charge should be reinstituted; contend-
ed the existing fixed work shifts should be supplanted
with rotating shifts, stating the five mechanics at the pre-
vious evening's meeting voted for that change; and recit-
ed a number of other grievances. Jaques also was critical
of Kapsimallis, stating he was inexperienced and the
service department was run inefficiently. When Keefer
asked him if he was saying Kapsimallis was incompetent,
Jaques replied he was not so much saying Kapsimallis
was incompetent as that Keefer was incompetent in
having
Kapsimallis as service
department
manager.
Jaques also criticized the way the sales department was
being run, stating that Young 4 was also incompetent;
that Keefer was incompetent and an idiot for continuing
him in that capacity and should replace Young with a
good sales manager to increase sales, Keefer should in-
crease advertising to bring in more business; and other
criticisms. Keefer at one point stepped from behind his
desk and asked Jaques if he could do his job better.
Jaques stepped behind the desk, stated he could, and
asked what he needed to sign to assume command. At
that point Young left his office, entered Keefer's office,
and remained there for the balance of the discussion.
Somewhere during the discussion
Keefer showed
Jaques records displaying the earnings of the Company's
mechanics and compared them unfavorably with the
earnings of union-represented mechanics on the percent-
age pay system and asked Jaques if he favored union rep-
resentation and the union-negotiated pay system. Jaques
stated he could not discuss the Union on the clock.
Keefer replied he neither knew nor cared anything about
that. Jaques shut the door to Keefer's office and stated
he hated the Union and wanted no part of it. Also, some-
where during the discussion Keefer pointed out the
Company's steadily increasing overhead for rent, uni-
forms, supplies, and such and complaints from the fac-
tory over the Company's labor costs prior to the change
to the ratio system and stated those factors prevented a
return to a percentage labor charge figure exceeding 40-
42 percent. Keefer gave other explanations for not re-
turning to the former pay system, to be met mostly by
charges that he, Young, Kapsimallis, and others were
1I Referring to Htarry Young, the Compan', sales manager. an ad-
mitlled super
isor and ageit oif the Companl
acting on its behalf
HAWTHORNE
MAZDA,
INC
3113
320
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
simply incompetent, idiots, and stupid.'5
Tiring of the
vituperation, Keefer brought it to a close by stating in
view of Jaques' attitude, he was terminated. Asked why,
Keefer replied, "insubordination." Then Jaques asked if
he should finish the job he was working on, Keefer told
him "no, just leave." When Jaques asked if he had to
take out his tools that evening Keefer told him he would
give him until the following morning. When Jaques
asked Keefer what to state to the unemployment office
concerning his termination Keefer told him he had a
choice of quit or discharge. When Jaques asked if the
reason for the latter should be listed as insubordination
Keefer replied affirmatively.' 6
When Jaques came in to pick up his tools, turn in his
uniforms, and pick up his final check the next morning
he sought out Keefer in his office, stated that he was not
going to exercise the quit option, that he had been to the
Labor Board, was scheduled to return, and knew what
to do, but would forget about going back to the Board if
Keefer made the changes he wanted. Keefer said he
would consider them. Jaques filed his original charge
with the Regional Office 2 days later.
B. Analysis and Conclusions
On the basis of the foregoing findings of fact, I find
and conclude that Keefer discharged Jaques because of
the latter's disrespectful attitude towards company man-
agement and intemperate attacks on company officials,
policies, and practices rather than for engaging in pro-
tected, concerted activities.
While Jaques did seek out Keefer and expressed the
mechanics' 7 dissatisfaction with the current pay and
work assignment systems, he never presented Keefer
with the petition; never told Keefer he was acting as the
I Keefer and Young lost count of how many times Jaques so charac-
terized Keefer; they agreed Young and Kapsimallis were so called only
five or six times
6 The foregoing findings are based on the testimony of Keefer ad
Young as partially corroborated by Jaques Jaques' testimony that he was
invited into Keefer's office, asked if he was trying to bring a union in as
he had at his previous employer Budget Rent-A-Car, and asked what was
going on is nriot credited. Rather, based on demeanor and my impression
of sincerity, I credit Keefer's testimony that he did not learn of Jaques'
previous success in securing
financial settlement from Budget Rent-A-
Car, as a result of filing a charge with the NLRB alleging his discharge
by that employer resulted from his alleged union activities, until after the
current charge
was filed against the Compaly.
I credit Keefer and
Young's testimony Jaques followed Keefer into the latter's office, the
latter did nlot ask Jaques what was going on but rather heard him out on
his complaints, objections, and charges and replied thereto.
"7 I find, as Jaques testified, he used the term "we" in stating the dis-
satisfaction of four of the six mechanics with the current pay and swork
shift assignment systems and other complaints. While Keefer testified Jac-
ques used the personal pronoun "we" in stating his complaints, in his pre-
trial affidavit he corroborated Jaques.
duly authorized representative of other mechanics in pre-
senting proposals for change in those systems or any
other working conditions; never made it clear he was
doing other than persisting in presenting personal views
(Keefer reasonably interpreted "we" as just the figure of
speech Jaques was using) despite Keefer's express desire
he bring his complaints through Kapsimallis; and went
far beyond expression of any complaints or grievances in
attacking the competence and integrity of all levels of
management, including a direct attack on Keefer himself,
in highly derogatory terms.
I, therefore, shall recommend dismissal of those por-
tions of the complaint alleging the Company discharged
Jaques because he engaged in protected, concerted activ-
ities and thereby violated the Act.
While I have entered findings that Keefer, at one point
during the discussion, asked Jaques if he favored union
representation, I find and conclude in the context the
question was asked, as a comparison between incomes of
union represented and company mechanics, Keefer was
not so much seeking information concerning Jaques'
union sentiments as he was addressing a rhetorical ques-
tion, that being he would prefer the higher potential and
actual incomes the top company mechanics were receiv-
ing under the ratio pay system at the Company or the
lower ones union-represented mechanics were earning
under their percentage of labor charge pay system? ,
therefore, find and conclude by the question Keefer did
not violate the Act.
In view of the foregoing, I shall recommend dismissal
of the entire complaint.
CONCI.USIONS OF LAW
1. At times pertinent the Company was an employer
engaged in commerce in a business affecting commerce
within the meaning of Section 2 of the Act.
2. At times pertinent Keefer, Kapsimallis, and Young
were supervisors and agents of the Company acting on
its behalf within the meaning of Section 2 of the Act.
3. The Company did not interrogate Jaques regarding
his union activities, sympathies, and desires in a manner
violative of the Act during the April 20 discussion be-
tween Keefer and Jaques.
4. The Company did not discharge Jaques on April 20
because he engaged in concerted activities protected
under the Act.
5. The Company did not commit unfair labor practices
violative of the Act in the course of the April 20 discus-
sion or by Jaques' April 20 discharge.
[Recommended Order for dismissal omitted from pub-
lication.]