251 NLRB 313

Hawthorne Mazda, Inc.

Last amended: 1980Year: 1980Length: 8,207 wordsOfficial source
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.]
251 NLRB 313: Hawthorne Mazda, Inc. | Justis AI