Desert Toyota

National Labor Relations Board - Board Decisions

Dec 23, 2005

346 N.L.R.B. 132 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 4
132
T-West Sales & Service, Inc. d/b/a Desert Toyota, and
International Association of Machinists and
Aerospace Workers, Local Lodge 845, AFL–
CIO (formerly 28–CA–18726 Local Lodge 744).
Cases 28–CA–18478, 28–CA–18496, 28–CA–
18503, and 28–CA–18699
December 23, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On December 3, 2003, Administrative Law Judge Al-
bert A. Metz issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering brief and the Respondent
filed a reply.
The National Labor Relations Board has considered
the decision in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Decision
and Order.
I. INTRODUCTION
The Respondent operates a new and used car dealer-
ship and service facility in Las Vegas, Nevada. In perti-
nent part, the issues in this case concern the Respon-
dent’s alleged reactions to the administrative law judge’s
November 13, 2002 decision in Desert Toyota I, 28–CA–
17904, etc. In that case, the judge recommended that a

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s dismissal of: (a) the allegation
that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally chang-
ing terms and conditions of employment relating to employees’ mop-
ping their work areas, to the assignment of extended warranty work,
and to employee use of the timeclock; (b) the allegation that the Re-
spondent violated Sec. 8(a)(4), (3), and (1) by disciplining Thomas
Pranske on January 24, 2003; (c) the allegations that the Respondent
violated Sec. 8(a)(3) and (1) by disciplining Charles Frankhouse on
December 5, 2002, January 28 and April 24, 2003, threatening and
discharging Frankhouse on February 25, 2003, imposing restrictions
upon Frankhouse on April 17, 2003, and terminating Frankhouse’s
employment on or about May 8, 2003; and (d) the allegations that the
Respondent violated Sec. 8(a)(3) and (1) by “diminishing work oppor-
tunities for union supporters” and by “reduc[ing] the flag or flat rate
hours earned by employees who had signed cards with the Union.”
Furthermore, for the reasons stated in his decision, we adopt the
judge’s finding that the Respondent violated Sec. 8(a)(1) when Service
Director Vincent Casucci warned Frankhouse about discussing the
Union and threatened that Frankhouse would be segregated from other
employees.
Gissel bargaining order issue.2 The complaint here al-
leged, among other things, that the Respondent refused to
provide information to the Union, refused to bargain with
the Union as required by the judge’s decision in Desert
Toyota I, made several unilateral changes in its employ-
ees’ terms and conditions of employment, and discrimi-
nated against two union adherents, one of whom testified
against the Respondent in Desert Toyota I, and another
of whom assumed the role of the Union’s contact em-
ployee after the Respondent allegedly discriminatorily
discharged the employee who previously held that posi-
tion.
The judge here found that the Respondent violated
Section 8(a)(1), (3), (4), and (5) of the Act. As explained
below, and pursuant to our decision in Desert Toyota I,
346 NLRB 118 (2005), issued contemporaneously here-
with, we reverse most of the judge’s findings of viola-
tions.
II. UNFAIR LABOR PRACTICES
A. Refusal to Bargain or to Provide Information
After the judge’s decision issued in Desert Toyota I,
the Union made repeated requests that the parties begin
bargaining and that the Respondent provide certain in-
formation concerning unit employees. The Respondent
declined to initiate negotiations, informing the Union
that, because it was filing exceptions to the judge’s deci-
sion, bargaining with the Union would be inappropriate.
The Respondent did not respond to the Union’s various
requests for information.
The judge found that the Respondent violated Section
8(a)(5) and (1) by refusing to provide the requested in-
formation and by refusing to bargain with the Union.
The judge found that the Respondent’s bargaining obli-
gation began in February 2002, the date on which the
judge in Desert Toyota I determined that a majority of
the employees had designated the Union as their collec-
tive-bargaining representative.
We disagree. In light of our reversal of the recom-
mended remedial bargaining order in Desert Toyota I, we
find that the Respondent did not have an obligation to
bargain with the Union as the exclusive collective-
bargaining representative of its employees. Therefore, it
did not violate the Act by refusing to bargain with or to
provide information to the Union. We dismiss these al-
legations.3

2 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
3 For the same reason, we dismiss the allegations concerning the Re-
spondent’s allegedly unlawful unilateral changes to its employees’
terms and conditions of employment. In so finding, we do not pass on
the judge’s findings that the various changes were material, substantial,
and significant.
DESERT TOYOTA 133
B. Discipline of Thomas Pranske
1. January 29, 2003
Thomas Pranske was a used-car technician employed
by the Respondent. He signed a union authorization card
on February 11, 2002. During the hearing in Desert
Toyota I, the General Counsel called Pranske to testify.
Pranske’s testimony served as the factual basis for the
administrative law judge’s findings of various unfair
labor practices in that case. The judge’s decision in that
case issued on November 13, 2002.
In January 2003,4 Pranske was approached by New-
Car Manager Steve Velasquez, Used-Car Assistant Man-
ager Francisco Novoa, and Used-Car Buyer/Acting-
Used-Car Manager Mike Candeleria. Velasquez told
Pranske that they wanted a safety inspection on a 1992
Saturn that had already been sold through the Respon-
dent’s used-car department.5 Velasquez asked how much
a safety inspection would cost; Pranske replied that it
would cost around $100 for a 1-1/2-hour full inspection
plus a half-hour smog inspection. Although the judge
did not note it, Pranske testified that Velasquez explained
that the car was sold “as is,” and told Pranske that “he
didn’t care of [sic] any of the problems that it had. All
he wanted was the safety items . . . so it could be sold.”
Pranske inspected only the safety items.6 On the service
order, he checked only the seven safety items and left the
condition of the remaining items blank.7 However, he
recorded his time on the service order as the 1-1/2-hour
full inspection plus half-hour smog inspection.
Four days later, the car was towed back to the Respon-
dent’s facility because it was not drivable. The irate cus-
tomer complained to Service Director Vincent Casucci
about the car’s condition. The car was brought into the
shop, where technician Charles Frankhouse performed a
full inspection. Frankhouse’s inspection uncovered fail-
ure in the water pumps “and a list of other fluid type
leaks.” Casucci approached Candeleria and asked the
used car department to “authorize the money” for the
cost of fixing the car. Candeleria refused, taking the po-
sition that, because the service department had performed
the inspection without notifying the used-car department
that there were problems with the car, it was the service
department’s responsibility to fix the car. After review-
ing Pranske’s service order and learning that Pranske
failed to make any notations regarding the faulty condi-
tion of the car, Casucci agreed with Candeleria that the

4 All dates hereafter are in 2003, unless otherwise noted.
5 However, the sale was contingent upon a safety inspection.
6 Safety items are windshield wipers, brakes, tires, lights, wind-
shield, seatbelts, and horn.
7 According to Pranske, the Respondent requires its used-car techni-
cians to inspect 168 different items when performing a full inspection.
service department was responsible for the cost of re-
pairs. Thus, Casucci had the service department fix the
car at its own expense.
On January 29, Casucci issued a corrective action re-
cord (CAR) to Pranske, citing Pranske’s failure to note
the car’s faulty condition on the service order he pre-
pared when he inspected the car.8 Pranske objected to
the disciplinary warning, arguing that he had done ex-
actly what Velasquez told him to do, and that he had per-
formed similar abbreviated safety-item inspections be-
fore without issue. Casucci was not satisfied with this
explanation and told Pranske there was not enough in-
formation on the service order. Pranske asked Candel-
eria and Novoa to confirm his account of his discussion
with Velasquez, which they did. According to Pranske,
Casucci replied, “[T]hat he couldn’t believe them of what
they were saying.” Casucci testified that, despite cor-
roboration, Pranske’s explanation that he was only doing
as he was told was “not a good answer.”
Although not mentioned by the judge in his decision,
at the hearing in this case, Pranske acknowledged in tes-
timony his dual obligations as a member of the used-car
reconditioning team. He testified:
That’s the problem with the recondition depart-
ment. They work for both [the service department
and the used-car department]. And it’s one of those
where you have Vinnie [Casucci] as your boss, and
you have the guys [from used-car] as your boss, and
they—it’s just a tough job.
You know, because [used car] is in charge of
what they want done to their cars, you know, and
they’re telling you what they want to do, but you’re
also with the service department, and what they’re
wanting done. So you—and if you don’t say, you
know, if you don’t go along with Mr. Velasquez,
what he just told you, then you’re going to get in
trouble with Vinnie, because he’s going to Vinnie,
and why didn’t he do what I said? So—and so
you’re just kind of caught in the middle.
The judge found that the Respondent violated Section
8(a)(3), (4), and (1) by disciplining Pranske. We dis-
agree. Our analysis of whether the discipline violated the

8 The CAR cited “Dependability” as the reason for action, and iden-
tified the event as follows: “Tom performed a vehicle safety inspec-
tion—Tom listed no notes of the vehicles [sic] condition—or any con-
cerns about the vehicle—the vehicle was sold—the vehicle was towed
back in 4 days after inspection—found water pump failure and several
oil leaks (Heavey) [sic]—Tom did not note anything about the vehicle
having heavy oil leaks—or any other condition—so the vehicle was
sold without knowing this information.” Under “Required Improve-
ment,” Casucci wrote “Tom must completely inspect vehicles per re-
con/inspection guidelines and note what has been found. . . .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD134
Act is governed by the test articulated in Wright Line.9
Under that test, the General Counsel must prove that
animus against protected activity was a substantial or
motivating factor in the adverse employment action. The
elements commonly required to support such a showing
are union or other protected activity by the employee,
employer knowledge of that activity, and union animus
on the part of the employer.10 See Willamette Industries,
341 NLRB 560, 562 (2004).
If the General Counsel makes the required initial
showing, the burden then shifts to the employer to prove,
as an affirmative defense, that it would have taken the
same action even in the absence of the employee’s pro-
tected activity. See Manno Electric, 321 NLRB 278, 280
fn. 12 (1996). To establish this affirmative defense,
“[a]n employer cannot simply present a legitimate reason
for its action but must persuade by a preponderance of
the evidence that the same action would have taken place
even in the absence of the protected activity.” W. F.
Bolin Co., 311 NLRB 1118, 1119 (1993), petition for
review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem.
99 F.3d 1139 (6th Cir. 1996). The ultimate burden re-
mains, however, with the General Counsel. Framan Me-
chanical Inc., 343 NLRB 408, 411 (2004) (citing Wright
Line, 251 NLRB at 1088 fn. 11).
Here, the judge found that the General Counsel met his
burden to prove that animus against Pranske’s union ac-
tivity and against his Board hearing testimony was a sub-
stantial or motivating factor in the January 29 discipline.
The judge further found that the Respondent failed to
meet its burden to prove that it would have disciplined
Pranske absent his union activity. According to the
judge, the Respondent did not satisfactorily explain
Casucci’s rejection of Pranske’s corroborated excuse that
he was simply following Velasquez’ orders. In this re-
gard, the judge “d[id] not credit Casucci that he was
merely disciplining Pranske for faulty work performance
relating to the used car inspection.” While we question
whether the General Counsel has satisfied his initial bur-
den under Wright Line, we will assume, for purposes of
deciding this case, that he did. However, contrary to the

9 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
10 Regarding the Wright Line analysis, Member Schaumber notes
that the Board and circuit courts of appeals have variously described
the evidentiary elements of the General Counsel’s initial burden of
proof under Wright Line, sometimes adding as an independent fourth
element the necessity for there to be a causal nexus between the union
animus and the adverse employment action. See, e.g., American Gar-
dens Management Co., 338 NLRB 644, 645 (2002). As stated in
Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), since Wright
Line is a causation analysis, Member Schaumber agrees with this addi-
tion to the formulation.
judge, we find that the Respondent established that it
would have disciplined Pranske even in the absence of
his protected activity.
The Respondent disciplined Pranske for failing to con-
duct a proper inspection and to identify the car’s defects,
as the testimony of Pranske and Casucci and the text of
the CAR make clear. Pranske acknowledged that the
inspection was incomplete and that it fell short of the
Respondent’s guidelines. From the Respondent’s per-
spective, Pranske’s inadequate inspection had serious
consequences. It resulted in the sale of a defective car,
which damaged the Respondent’s business reputation.
Further, the Respondent considered Pranske’s failure to
fully inspect the car sufficiently egregious that the ser-
vice department was forced to absorb the cost of repair-
ing it.
The discipline was also consistent with discipline for
like infractions in the past. Employee Richard Drug-
mand was disciplined by the Respondent for “not writing
[on a service order] what [he] found on the vehicle.” Of
even greater significance is the fact that Pranske himself
received a written warning on January 24 for failing to
“completely inspect vehicles per recon[ditioning] guide-
lines” by allowing a car to leave the shop with under-
sized and warped brake rotors.11 Thus, the warning
given to Pranske on January 29 was entirely consistent
with a warning given him for a similar violation only a
few days earlier. 12
Our dissenting colleague argues that the Respondent’s
defense fails because Pranske was following Velasquez’
instructions when he performed the abbreviated inspec-
tion. We disagree. Casucci had no knowledge of
Velasquez’ limiting instruction at the time he issued the
CAR.13 When Pranske brought the instruction to
Casucci’s attention, he nevertheless concluded that the
discipline was justified. For the reasons that follow, we
find that the Respondent’s discipline of Pranske was non-
discriminatory.

11 There are no exceptions to the judge’s finding that this discipline
was lawfully issued.
12 Our dissenting colleague asserts that these comparable instances
of discipline are unavailing because “[t]here is no evidence that in any
of these instances the employees disciplined were following precise
instructions from supervisory personnel.” This argument fails. At the
time he made the decision to discipline Pranske, Casucci had no notice
that Pranske was following Velasquez’ instructions. Casucci knew
only that, despite Pranske’s apparently complete inspection, Pranske
failed to identify faulty conditions which caused the car to be returned
for repairs at the service department’s expense. In our view, these prior
instances of discipline for failure to completely inspect a car or find any
defects are comparable to the decision to discipline Pranske here.
13 We therefore respectfully disagree with the dissent’s assertion that
the judge found that Casucci knew of the instruction “at the time he
formally warned Pranske.”
DESERT TOYOTA 135
First, Pranske admitted that he was required to satisfy
his own service department’s standards as well as those
of Velasquez’ used-car department when performing
used-car inspections. Thus, although Velasquez may
have told Pranske to do a safety inspection, Pranske un-
derstood that the service department would want a full
inspection. Indeed, Pranske’s service order recorded the
1-1/2 hours necessary for the full inspection. Clearly,
Pranske did not do that full inspection.14
Second, the Respondent had recently evidenced a will-
ingness to hear Pranske’s explanation of service-related
deficiencies before finalizing a prior disciplinary deci-
sion. As previously mentioned, Casucci issued a CAR to
Pranske on January 24 for allowing a car to leave the
shop with faulty brake rotors and for failing to diagnose a
noisy drive shaft spline binding. After Casucci issued
the CAR, he and Pranske measured, at Pranske’s request,
one of the two brake rotors and found it to be within
specifications. Pranske also had technician Ted Gardner
tell Casucci that he worked on the car after Pranske and
did not recall hearing any noise relating to the drive
shaft. After receiving this additional information,
Casucci modified the CAR to state that only one of the
brake rotors failed to meet specifications. As mentioned
above, there are no exceptions to the judge’s finding that
this discipline was lawful. The Respondent gave the
same consideration to Pranske’s “following orders” de-
fense on January 29, but rejected it.
Third, testimony that Pranske performed inadequate
inspections in the past, and was not disciplined, does not
alter this analysis. There is no evidence that any of these
prior inadequate inspections came to the attention of the
service department, much less resulted in a car being sold
in a seriously defective condition requiring the service
department to absorb its repair costs. An employee is
not insulated from discipline simply because his previous
failures to work to a specification did not come to man-
agement’s attention. Further, in each instance where the
Respondent was aware of Pranske’s failure to conduct a
proper service inspection, it acted promptly to investigate
the matter and to impose discipline.15
We disagree with our dissenting colleague to the ex-
tent she argues that the judge’s finding of an unfair labor

14 In this regard, Member Schaumber notes that the Respondent dis-
charged Velasquez 2 days after Casucci learned about this incident.
15 We note that the Respondent eventually fired Pranske in May
2004 for falsely stating in reports filed with the Nevada Department of
Motor Vehicles that he conducted a complete safety inspection of a
vehicle. This discharge was the subject of an unfair labor practice
allegation in Desert Toyota, Case 28–CA–19447 (Desert Toyota III),
now pending before the Board on other issues. There are no exceptions
to the judge’s finding that the discharge was lawful. See Desert Toyota
III, 346 NLRB 99 (2005)
practice for disciplining Pranske can only be reversed if
we overturn the judge’s credibility finding regarding
Casucci’s testimony as to his motivation for the disci-
pline. While we have some question with regard to the
judge’s credibility determination,16 the Board has appro-
priately held that the ultimate issue in a case of this na-
ture—the Respondent’s motivation for disciplining Pran-
ske—is to be resolved based on all record evidence taken
as a whole.17
As noted supra, Pranske had received a disciplinary
warning on January 24 for failing to “completely inspect
vehicles per recon[ditioning] guidelines.” There is no
longer any contention that this discipline was unlawful.
Only 5 days later, Pranske repeated the offense. Conced-
edly, service manager Velasquez had told Pranske to
perform only a safety inspection. However, Pranske
worked for the used-car department and the service de-
partment. Indeed, in his testimony herein, Pranske ac-
knowledged his dual obligations. In the latter capacity,
Pranske had an obligation to perform a full inspection.
He even recorded his time as performing both. Accord-
ingly, Casucci rejected as insufficient Pranske’s explana-
tion that Velasquez told him to do only a safety inspec-
tion. In sum, Pranske had committed two similar of-
fenses within a short timeframe. Clearly, a warning un-
der these circumstances was not discriminatory. Con-
sequently, we find that, even apart from Casucci’s dis-
credited testimony on his motivation, the Respondent
nevertheless showed by a preponderance of the evidence
that it would have disciplined Pranske on January 29 in
the absence of his protected activity, just as it did on
January 24. We therefore reverse the judge and dismiss
the allegations that the discipline violated Section
8(a)(3), (4), and (1).

16 Among other things, there is no indication that the judge consid-
ered Casucci’s undisputed testimony that the used-car department re-
fused to cover the cost of repairs because of Pranske’s incomplete
service order, or Pranske’s admission that he was subject to discipline if
he failed to meet the standards of either the used car department or the
service department
17 In Charles Batchelder Co., 250 NLRB 89, 89–90 (1980), enf. de-
nied 646 F.2d 33 (2d Cir. 1981), the Board explained:
The Administrative Law Judge credited Respondent’s explanation for
the discharge of Fleming and, on the basis of such credibility finding,
concluded that Fleming was properly discharged solely for making “a
threat of bodily harm . . . to an employee who had expressed his pref-
erence to refrain from union activity.” However, the question of mo-
tivation where an alleged unlawful discharge [or other adverse action]
is involved is not one to be answered by crediting or discrediting a Re-
spondent’s professed reason for the discharge, and thus we cannot ac-
cept every credibility finding by a trier of fact as dispositive of that is-
sue. Rather, that question is one to be resolved by a determination
based on consideration and weighing of all the relevant evidence.
Accord: Syracuse Scenery & Stage Lighting Co., 342 NLRB 672, 674 fn. 6
(2004).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD136
2. January 31, 2003
After receiving the writeup on January 29, Pranske be-
came upset and started arguing with Casucci. Pranske
testified that he told Casucci that the warning was “a
bunch of ‘b.s.,’ that Casucci should quit ‘screwing’ with
him, and that he was getting the warnings because of
‘union bullshit.’” Pranske also testified that he used
“some other words” during this encounter. Casucci testi-
fied that Pranske said, “just fuckin’ fire me,” and “what
are you fuckin’ doing,” while directing hostility at and
scaring Casucci. Casucci told Pranske that that type of
behavior was not going to be tolerated. Pranske left the
office and slammed the door.
On January 31, the Respondent issued to Pranske an-
other disciplinary writeup for his “insubordinate” behav-
ior in response to receiving the warning concerning the
safety inspection. The writeup notes Pranske’s protest-
ing the earlier warning by stating, “this isn’t fucking
right.” The judge found that this written warning was a
continuation of the discriminatory action taken against
Pranske when the Respondent issued the January 29
warning. Thus, according to the judge, this, too, was a
violation of Section 8(a)(3), (4), and (1).
We disagree. In light of our finding that the Respon-
dent’s issuance of the January 29 discipline was not dis-
criminatorily motivated, we find that the judge’s “con-
tinuation” analysis is incorrect. Moreover, and even as-
suming the General Counsel met its initial burden in
proving that Pranske’s protected activities were a moti-
vating factor in the January 31 discipline, we find that
the Respondent has offered sufficient evidence to dem-
onstrate that it would have disciplined Pranske even in
the absence of his union activity. The record shows that
other, similarly situated employees were disciplined for
insubordinate behavior and abusive language. Indeed,
Charles Frankhouse was temporarily discharged follow-
ing an argument with Aaron Morey, the reconditioning
dispatcher, during which he yelled, “[I]f you can’t take a
fuckin’ joke then don’t fuckin’ tease me.”18 The judge
found this discharge to have been lawfully issued. Here,
Pranske used more inflammatory language than Frank-
house, and only received a written warning.
In these circumstances, we find that the Respondent
has shown that its discipline of Pranske on January 31
was consistent with its treatment of other, similarly situ-
ated employees. We therefore conclude that the Respon-
dent showed that it would have disciplined Pranske for
his outburst, even in the absence of his union activities.

18 Frankhouse also received written warnings for insubordinate be-
havior on April 8 and May 9. None of this discipline was found to have
been issued unlawfully.
Accordingly, we reverse the judge’s finding that the dis-
cipline violated Section 8(a)(3), (4), and (1), and we dis-
miss these allegations.
ORDER
The National Labor Relations Board orders that the
Respondent, T-West Sales & Service, Inc. d/b/a Desert
Toyota, Inc., Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees about discussing union ac-
tivity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”19 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facilities involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since October 1, 2002.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER LIEBMAN, dissenting in part.
Prounion employee Thomas Pranske, whose testimony
in a companion case was the basis for finding that the
Respondent had violated the Act, was disciplined for
following a superior’s instructions. Not surprisingly, he
complained hotly to a supervisor, insisting that the warn-
ing was really because of his union activity—and was
disciplined again, this time for insubordination. Discred-

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DESERT TOYOTA 137
iting the Respondent’s chief witness, based in part on
demeanor, the judge was not persuaded that the Respon-
dent would have disciplined Pranske regardless of his
union activity. Neither am I, contrary to the majority,
which errs in this and other respects.1
I.
Pranske was given a corrective action record (CAR) on
January 29, 2003,2 by Service Department Director Vin-
cent Casucci, purportedly because he performed an in-
complete inspection on a used vehicle that was sold with
leaks and then returned by the customer. Casucci de-
cided that the service department should absorb the cost
of repairing the car and prepared a CAR without first
speaking with Pranske about the incident.3
When Casucci presented Pranske with the discipline,
Pranske explained that he performed only a “bare bones”
safety inspection of the vehicle because General Sales
Manager Steve Velasquez, along with Assistant Used-
Car Manager Francisco Novoa and Company Car Buyer
Mike Candeleria, had expressly instructed him to do so.4
Novoa and Candeleria confirmed that Pranske had per-
formed the inspection precisely as directed by Velasquez.
Casucci nevertheless told Pranske that his explanation
“was not a good answer.”
Pranske became upset by what he perceived as an un-
justified discipline, and told Casucci that the warning
was “b.s.,” that Casucci should quit “screwing” with him,
and that the warning was really because of “union bull-
shit.” Casucci disciplined Pranske for this behavior on
January 31.

1 Because I agree with the judge that a Gissel bargaining order
against the Respondent was warranted in Desert Toyota I, 346 NLRB
118 (2005), for the reasons stated in my dissenting footnote in that case,
I would find that the Respondent violated Sec. 8(a)(5) and (1) by refus-
ing to bargain with the Union and to provide the Union with informa-
tion concerning unit employees and by unilaterally implementing new
work rules.
I agree with the majority and the judge that the Respondent unlaw-
fully threatened employee Charles Frankhouse for discussing the Un-
ion.
2 All dates hereafter are in 2003.
3 The CAR identified the basis for the discipline as follows: “Tom
[Pranske] performed a vehicle inspection—Tom listed no notes of the
vehicles [sic] condition—or any concerns about the vehicle—the vehi-
cle was sold—the vehicle was towed back in 4 days after inspection—
found water pump failure and several oil leaks (Heavey) [sic]—Tom
did not note anything about the vehicle having heavy oil leaks—or any
other condition—so the vehicle was sold without knowing this informa-
tion.”
4 A “bare bones” safety inspection includes checking the windshield
wipers, brakes, tires, lights, windshield, seatbelts and horn. It does not
include checking the vehicle’s water pump or fluid systems.
II.
The judge correctly found that the General Counsel
met his initial burden of establishing that union or other
protected activity was a motivating factor in the disci-
plining of Pranske.5 It is clear that the Respondent knew
of Pranske’s protected activity: Pranske testified ad-
versely to the Respondent in an earlier case, Desert Toy-
ota I, supra, and his signed authorization card was part of
the record there. The Respondent’s union animus is also
clear from its numerous violations of the Act found ear-
lier, including coercively interrogating Pranske about his
and a coworker’s union activities and telling him in no
uncertain terms that the coworker was fired for his union
activism. The burden of proof thus shifted to the Re-
spondent to establish that it would have taken the same
action even absent Pranske’s protected activity. The
Respondent has not done so.
As the judge did, I would find that the Respondent
failed to provide a credible reason for its adverse action
against Pranske. The judge, citing “demeanor and the
record as a whole,” discredited Casucci’s explanation for
the original writeup: that Pranske had failed to correctly
inspect and document the inspection of a used car that
was subsequently returned. The judge also relied on the
Respondent’s failure to address the undisputed evidence
that Pranske’s inspection of the vehicle complied with
the specific instruction of superiors and that Casucci
knew this at the time he formally warned Pranske. I see
no basis for reversing the judge’s credibility determina-
tion, applying the Board’s high standard.6 There is no
evidence that Pranske acted inappropriately in following
Velasquez’ instructions. His undisputed testimony is that
he had done so on many occasions. Indeed, Pranske’s
uncontradicted testimony was that he could get into trou-
ble with Casucci for failing to follow Velasquez’ orders.7
Disciplining an employee for taking action directed by

5 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
6 Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
262 (3d Cir. 1951) (Board’s established policy is not to overrule admin-
istrative law judge’s credibility resolutions unless contrary to clear
preponderance of all relevant evidence). Contrary to the majority’s
view, the judge’s credibility determination here was supported (as he
stated) by the record as a whole. This is not a case, then, where a find-
ing of pretext rests on the bare discrediting of an employer witness’s
testimony as to the reasons for discipline. See L.S.F. Transportation,
Inc., 330 NLRB 1054, 1056 and fn. 11 (2000), enfd. 282 F.3d 972 (7th
Cir. 2002) (affirming finding of pretext based on credibility determina-
tion).
7 Casucci testified that Velasquez did not have any authority to direct
Pranske’s work and that Pranske’s job was to perform a complete in-
spection when he received a work order. However, Pranske’s testi-
mony that he had performed abbreviated inspections at Velasquez’
request on several other occasions is uncontradicted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD138
his superiors is strongly suggestive of an unlawful mo-
tive.
The majority nevertheless concludes that “the Respon-
dent established that it would have disciplined Pranske
even in the absence of his union activity.” It cites the
“serious consequences” of Pranske’s inspection: harm to
the Respondent’s business reputation and forcing the
service department to absorb the cost of repairing the car.
It also asserts that the “discipline was consistent with that
imposed for like infractions in the past.” The majority
explains its reversal of the judge in part by observing that
“there is no indication that the judge considered
Casucci’s undisputed testimony that the used-car de-
partment refused to cover the cost of repairs because of
Pranske’s incomplete service order.”
But the majority’s explanation is untenable. It depends
on an artificial distinction between Pranske’s work per-
formance and the claimed consequence of that perform-
ance: that the service department absorbed the cost of the
repairs (Casucci’s decision). Casucci did not state that
the repair cost, as something separate from Pranske’s
work performance, was the reason for disciplining Pran-
ske; the Respondent did not argue the repair-cost point
until its brief to the board. Thus, when the judge, in his
words, did “not credit Casucci that he was merely disci-
plining Pranske for faulty work performance,” he neces-
sarily disposed of the repair cost as an explanation for
Pranske’s discipline.
The majority’s reliance on discipline involving several
other employees is also unavailing. There is no evidence
that in any of these instances the employees disciplined
were following precise instructions from supervisory
personnel. For that reason, these instances of discipline
are not comparable to the situation here.
The majority concedes that it is significant that Pran-
ske complied with instructions from Velasquez, but as-
serts that this fact is insufficient to demonstrate that the
Respondent’s explanation for the discipline is pretextual.
Of course, it is the Respondent’s burden (as the majority
acknowledges) to show that it actually would have disci-
plined for a lawful reason regardless of his protected
activity. And the majority admits that it is not enough
for the Respondent merely to present a justifiable reason
for its action.8 That, at most, is all the Respondent has
done here. Given the judge’s discrediting of Casucci, the
Respondent has not met its burden.
Finally, I agree, for the reasons stated by the judge,
that the second discipline received by Pranske, arising
from his angry response to the first unlawful discipline,

8 See, e.g., W. F. Bolin Co., 311 NLRB 1118, 1119 (1993), enfd.
mem. 99 F.3d 1139 (6th Cir. 1996) (cited by the majority).
was a continuation of the discriminatory action taken
against him, and was also unlawful.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten employees about discussing un-
ion activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
T-WEST SALES & SERVICE, INC. D/B/A/ DESERT
TOYOTA
Joel C. Schochet, Esq., for the General Counsel.
James M. Walters, Esq., for the Respondent.
Dennis London, for the Charging Party Union.
DECISION1
ALBERT A. METZ, Administrative Law Judge. This case in-
volves issues of whether the Respondent violated Section
8(a)(1), (3), (4), and (5) of the National Labor Relations Act
(the Act).2 On the entire record, including my observation of

1 This matter was heard at Las Vegas, Nevada on July 1–2 and 17,
2003. By letter dated November 4, 2003, the Regional office notified
the undersigned that the Board had authorized the Region to seek 10(j)
injunctive relief in cases that included cases considered in this decision.
2 29 U.S.C. §§157, 158(a)(1), (3), (4), and (5):
RIGHTS OF EMPLOYEES
Sec. 7. [§ 157.] Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection. . . .
UNFAIR LABOR PRACTICES
Sec. 8. [§ 158.] (a) It shall be an unfair labor practice for an
employer—
(1) to interfere with, restrain, or coerce employees in the ex-
ercise of the rights guaranteed in section 7;
. . . .
DESERT TOYOTA 139
the demeanor of the witnesses, and after considering the par-
ties’ briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a car dealership at
its facility in Las Vegas, Nevada. The Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. BACKGROUND
On November 13, 2002, Administrative Law Judge Lana H.
Parke issued her decision in JD(SF)–92–02 involving the same
parties as this case. She found that since the latter part of Feb-
ruary 2002 the Union had been designated by a majority of the
Respondent’s employees as their collective-bargaining repre-
sentative in the following appropriate unit:
All full-time and regular part-time service technicians, includ-
ing Toyota technicians, used car technicians, accessory in-
stallers, and lube technicians employed by Respondent at its
Las Vegas, Nevada facility; excluding all other employees,
office clerical and professional employees, guards and super-
visors as defined in the Act.
Judge Parke recommended that the Board issue a bargaining
order directing the Respondent to bargain with the Union as the
representative of the unit employees. She also found that the
Respondent had committed various unfair labor practices, in-
cluding that the Respondent discharged Jorge Galindo because
of his activity on behalf of the Union. That finding was based in
part upon the testimony of its employee Thomas Pranske espe-
cially regarding the actions of Respondent’s agents, acting ser-
vice director, Vinnie Casucci, and used-car manager, Tony
Zita.
The Government in the present matter alleges that the Re-
spondent has violated Section 8(a)(5) of the Act by refusing to
bargain with the Union and provide it with certain relevant
information, as well as making several unilateral changes to
terms and conditions of employment without giving the Union
notice and an opportunity to bargain. It is further alleged that
the Respondent violated Section 8(a)(3) of the Act by discrimi-
nating against employees because of their support for the Un-
ion. In the case of employee Thomas Pranske, it is alleged the
Respondent violated Section 8(a)(4) of the Act by retaliating
against him for having given testimony at the prior trial. Fi-
nally, the Government alleges that the Respondent threatened
an employee and promulgated an unlawful no-solicitation rule

(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization . . . ,
(4) to discharge or otherwise discriminate against an em-
ployee because he has filed charges or given testimony under this
Act.
(5) to refuse to bargain collectively with the representatives
of his employees . . . .
to keep employees from talking about the Union in violation of
Section 8(a)(1) of the Act.
The Respondent has filed exceptions to Judge Parke’s deci-
sion and order. Due to the appeal of that decision, the Respon-
dent concedes it has declined to bargain with the Union. The
Respondent asserts that it has neither instituted new work rules
nor retaliated against any employees, whether known to support
the union or not. The Respondent asserts it has, in some cases,
reminded employees of rules that were in place prior to the time
any union organizing efforts began. Finally, the Respondent
argues that none of the rules in question was onerous or sub-
stantial and any changes were de minimis.
III. THE 8(A)(5) ALLEGATIONS
A. The Respondent’s Refusal to Bargain and
Provide Information
On December 10, 2002, Mike Wardle, the Union’s grand
lodge representative, wrote two letters addressed to the Re-
spondent’s general manager, Bob Carmendy. Wardle’s letters
requested that the parties begin bargaining and asked that the
Respondent provide certain information concerning unit em-
ployees, including names, pay, hours worked, benefits, job
titles, etc.
On December 18, 2002, Jorge Gonzalez, director of labor re-
lations for the Respondent’s parent, AutoNation, replied to
Wardle’s letters by stating that the Respondent would be filing
exceptions to Judge Parke’s decision and it was, therefore, in-
appropriate to bargain with the Union.
On March 11, 2003, Wardle wrote another letter to the Re-
spondent requesting the names, addresses and telephone num-
bers of service technicians that the Respondent had newly
hired. The Respondent did not respond to Wardle’s request.
On March 24, 2003, Wardle wrote the Respondent stating
the Union had learned that the Respondent was making unilat-
eral changes to the pay periods of unit employees. Wardle re-
quested that the Respondent bargain about the unilateral
changes. On March 26, Gonzalez wrote Wardle noting that the
Respondent had appealed Judge Parke’s decision and, thus, was
under no obligation to bargain with the Union.
On March 27, 2003, Wardle sent the Respondent another re-
quest for the names, addresses and telephone numbers of re-
cently hired unit employees. The Respondent did not reply to
his request.
It is axiomatic that an employer acts at its peril in refusing to
bargain with a union while the union’s status is being contested.
L. Suzio Concrete Co., 325 NLRB 392, 396 (1998), enfd. 173
F.3d 844 (2d Cir. 1999); Clements Wire & Mfg. Co., 257
NLRB 1058, 1058 (1981). To hold otherwise would punish
employees while benefiting the violator of the Act. As the
Board stated in Maywood Donut Co., 256 NLRB 507, 508
(1981):
With respect to Respondent’s request to . . . stay these pro-
ceedings pending a determination in [the earlier unfair labor
practice case] by the United States Court of Appeals for the
Ninth Circuit, the request is denied. It is settled law that the
pendency of collateral litigation does not suspend a respon-
dent’s duty to bargain under Section 8(a)(5) of the Act. [Cita-
tions omitted.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD140
An employer’s obligation to bargain in good faith includes
providing a union with necessary information that is relevant to
the performance of its obligations as the employees' bargaining
representative. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). The
Board and the courts apply a liberal, discovery-type standard of
“probable or potential relevance” in determining whether a
bargaining representative is entitled to requested information
for these purposes. Acme Industrial Co., supra.
The Respondent has been obligated to bargain with the Un-
ion since February 2002 the date that Judge Parke determined
that a majority of the employees had designated the Union as
their collective-bargaining representative. Based on this major-
ity status she held that a Gissel bargaining order was part of an
appropriate remedy for the Respondent’s unfair labor practices.
NLRB v. Gissel Packing Co., 395 U.S. 575, 614–615 (1969)
(“If the Board finds that the possibility of erasing the effects of
past unfair labor practices and ensuring a fair election (or fair
rerun) by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed through
cards would, on balance, be better protected by a bargaining
order, then such an order should issue.”). The Respondent has
not challenged the necessity or relevance of the information
that the Union requested and I find that the information clearly
deals with the employees’ wages, hours, and working condi-
tions and is relevant and necessary to the Union’s representa-
tive duties. Watkins Contracting, Inc., 335 NLRB 222 (2001);
Children’s Hospital, 312 NLRB 920, 930 (1993), enfd. 87 F.3d
304 (9th Cir. 1996); Crown Coach Corp., 243 NLRB 984, 985
(1979). I conclude that the Respondent violated Section 8(a)(1)
and (5) of the Act by refusing to provide the requested informa-
tion to the Union and by refusing to bargain with the Union.
B. Unilateral Changes
The Government alleges that several acts of the Respondent
are unlawful unilateral changes that involve the unit employ-
ees’ wages, hours and working conditions. The Respondent
contends that most of the “changes” were nothing more than a
reemphasis of existing rules, and in any case were not material,
substantial and significant. It is undisputed that the Respondent
did not notify or bargain with the Union about the following
changes.
1. Performance improvement process
In a communication dated September 2002 the Respondent’s
parent company, AutoNation, informed its general managers
that it had instituted “an important new program” at all of its
dealerships called the AutoNation performance improvement
process (PIP). The purpose of the program was “to provide
guidance on how to properly improve associate performance
and document corrective action conversations.” The letter was
signed by the parent company’s chief executive officer and its
president and chief operating officer. None of AutoNation’s
general managers participated in the PIP’s development. Part
of the “rollout” of the PIP directed senior managers to hold
meetings with managers and supervisors no later than Novem-
ber 1, 2002, to explain the plan to them. All managers and su-
pervisors were then required to complete computer-based train-
ing in the PIP by December 31, 2002.
The Respondent argues that the PIP was not a new program,
but rather a reiteration of its old disciplinary system. The Gov-
ernment alleges that the documentation announcing the PIP
clearly states it was a new program, and, importantly, the PIP
added grounds for disciplining employees.
The 2000 edition of the AutoNation associate handbook
(human resources policies & procedures) lists examples of 20
offenses that would subject an employee to discipline. The PIP
contains a list of 35 such disciplinary offenses. Some of the
new offenses added to the list included, “Poor attitude, includ-
ing rudeness or lack of cooperation”; “Using company tele-
phones for non-company purposes (except emergencies)”;
“Wasting time, material, or effort, or interfering with others by
action, excessive noise, or non-work related conversations” and
“Citations for DUI or DWI of any associate whose duties may
include operation of Company vehicles, even if infraction oc-
curred in a personal vehicle on his/her own time.”
A unilateral change in represented employees’ terms and
conditions of employment is a mandatory subject of bargaining
and is unlawful if the change is “material, substantial and sig-
nificant.” Flambeau Airmold Corp., 334 NLRB 165 (2001).
The Board has held that an employer’s creating new grounds
for discipline represented ‘‘material, substantial, and signifi-
cant’’ unilateral changes from the status quo of employment
conditions. Bath Iron Works, 302 NLRB 898, 902 (1991) (Add-
ing discipline for employee offenses involving possessing drug
paraphernalia and being convicted of a drug or alcohol related
crime, mandatory subjects of bargaining. The Board addition-
ally noted that the new offenses “introduced potential sanctions
that could logically apply to conduct having no manifestation at
all on the Respondent’s premises, e.g., a drunk driving convic-
tion arising from an incident during vacation.”); Sygma Net-
work Corp., 317 NLRB 411, 415 (1995) (Respondent’s addi-
tion of policies and increasing the discipline for violating pre-
vious policies were unlawful unilateral changes.). I find that the
PIP was a material, substantial and significant change in the
terms and conditions of employment of unit employees and was
thus a mandatory subject of bargaining. King Soopers, Inc., 340
NLRB 628, 628–629 (2003) (Work rules that can be grounds
for discipline are mandatory subjects of bargaining.); Praxair,
Inc., 317 NLRB 435, 436 (1995); Tenneco Chemicals, 249
NLRB 1176, 1180 (1980) (Performance standards that can be
enforced by discipline have an effect on employees’ job secu-
rity and are therefore a mandatory subject of bargaining); Mur-
phy Diesel Co., 184 NLRB 757, 762 (1970), enfd. 454 F.2d 303
(7th Cir. 1971). I conclude, therefore, that the Respondent’s
unilateral implementation of the PIP with regard to unit em-
ployees is a violation of Section 8(a)(1) and (5) of the Act.
2. Discipline pursuant to the PIP
The Government alleges that because the Respondent’s insti-
tution of the PIP was an unlawful unilateral change, it follows
that disciplining employees pursuant to the PIP also was unlaw-
ful. In addition, it is argued that the corrective action record
(CAR)—a written disciplinary form used to record corrective
and disciplinary matters—was introduced as part of the new
DESERT TOYOTA 141
PIP, and, therefore, the issuance of CARs should likewise be a
violation of the Act. The Respondent argues that there is no
evidence that the PIP/CARs resulted in discipline that the em-
ployee would not have received before the PIP program was
announced to management.
The CAR is a part of the new progressive disciplinary proce-
dure instituted by the PIP. The worker is to be given the oppor-
tunity to sign the CAR and it is then made “a permanent part of
the associate’s personnel record.” Since the Respondent has
refused to recognize and bargain with the Union, it has had no
say in negotiating about either the creation or implementation
of the CAR as it relates to unit employees. I find, therefore, that
the Respondent’s use of CARs to record discipline of employ-
ees as an integral part of its PIP program is a violation of Sec-
tion 8(a)(1) and (5) of the Act.3
3. Passing out paychecks
On December 20, 2002, the employees received a memo in-
forming them that the Respondent was changing the time that
they would receive their paychecks to 5 p.m. This change ad-
versely effected service technicians because their workdays
ended before that time. The prior practice was to give service
technicians their paychecks before 5 p.m. The change caused
some technicians to have to remain after the end of their shifts
in order to receive their checks. After a period of several weeks,
and complaints from employees, the Respondent changed back
to the prior practice of distributing paychecks before 5 p.m.
The Respondent explained that the change had been initiated
to avoid department heads constantly calling in the afternoon to
see if their checks were ready—a distraction that had caused
problems for the payroll department. When it was called to
Respondent’s attention that the new practice was presenting
problems for the technicians the paycheck distribution was
again revised to accommodate them. Thus, the Respondent
argues the change was de minimis.
The Government proved that the change in the paycheck dis-
tribution policy did have an adverse effect on some employees.
While the policy was ultimately modified, I do not agree with
the Respondent that the change was thereby de minimis.
Rather, I find that because of the inconvenience caused unit
employees for a period of weeks the unilateral change was a
material, substantial and significant change. I conclude that the
Respondent did violate Section 8(a)(1) and (5) of the Act by
unilaterally changing the paycheck distribution time.
4. Mopping work areas
The Government’s complaint alleges that in November 2002
the Respondent began requiring unit employees to mop up their
service bays under threat of discipline. The Respondent defends
against this allegation by arguing that the employees had al-
ways been responsible for keeping their service areas clean.
Respondent’s service department director, Vincent Casucci,
sent a reminder notice to employees in November 2002 reiterat-
ing the Respondent’s policy to keep their work areas clean. He
noted that some of the technicians were “getting a little sloppy”
and testified that problem resolved itself shortly after his
memo.

3 See fn. 4 for the remedial breadth of this ruling.
Employees Clayton Lamoya, Richard Drugmand, and Tho-
mas Pranske testified that they had always been aware of the
Respondent’s policy that they were responsible for keeping
their service bay areas cleaned up. Employee Charles Frank-
house began working for the Respondent on August 12, 2002.
He testified that no one had ever told him he had to mop his
area. On December 5, Frankhouse was given a warning for
failing to mop up his bay.
I find that the preponderance of the evidence shows that the
Respondent did not make an unlawful unilateral change by
enforcing its longstanding policy of requiring employees to
keep their service bays cleaned. I conclude that the Respondent
did not violate Section 8(a)(1) and (5) by reiterating the policy
in November 2002. I do, however, find that the CAR form
given to Frankhouse for this infraction is an example of the
unlawful implementation of the PIP plan and must be expunged
from his personnel record.
5. Test drive route
On January 3, 2003, Casucci distributed a memo to unit em-
ployees in which he discussed certain policies. One point stated
that the Respondent was establishing a required route for test
driving cars. The memo informed employees that if they devi-
ated from the prescribed route they would be subject to dis-
charge. No evidence was presented that test routes had ever
been dictated before or subject to discharge
The Respondent argues that most technicians already used
the same or similar route it prescribed. The Respondent ex-
plained that it had been in the process of acquiring property
adjacent to the dealership, and some area residents had com-
plained about dealership traffic in their neighborhood. In an
effort to appease the neighbors the Respondent decided to pro-
hibit test drives in the residential area south of the dealership.
The record establishes that service employees had driven
various routes when testing vehicles. There was no evidence
presented that prior to the memo an employee would be subject
to discipline because he drove a self-determined test route. The
threat to discharge an employee for ignoring the restricted route
is an important consideration in determining whether that uni-
lateral change is material, substantial, and significant. I find
that the Respondent’s unilateral implementation of the manda-
tory test route, which carried with it a penalty of termination,
was a substantial unilateral change. I conclude, therefore, that
the Respondent did thereby violate Section 8(a)(1) and (5) of
the Act. King Soopers, Inc., 340 NLRB 628, 629 (2003).
6. Prohibiting side work
The Government alleges that the Respondent violated the
Act by unilaterally establishing a policy against employees
using its facilities to do private work on other person’s vehicles
(“side work”). Casucci’s January 3, 2003 memo told employees
that doing such private work was not permitted at any time. The
memo’s prohibition ended with the pronouncement that, “Any
Service Technician caught performing side work on any vehicle
will be terminated on the spot.”
Employee Clayton Lamoya testified that he and a couple of
other employees had done side work prior to the issuance of the
memo. He testified that he ceased doing such work after receiv-
ing that document. The Respondent presented no evidence that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD142
it had a written rule pertaining to side work prior to Casucci’s
memo. Casucci, however, credibly testified that the Respondent
had always had a policy against such activity because it
amounted to employees using company facilities, supplies, and
equipment for their personal gain. Casucci testified that the
item dealing with side work was published due to his learning
that some employees were engaged in such activity. I credit
Casucci’s testimony that his memo was restating an established
policy prohibiting side work. The additional element of the side
work memo, however, was the threat that employees would be
fired “on the spot” for engaging in such activity. The Respon-
dent offered no evidence that this punishment had ever been a
part of its existing side work policy. I find that this punishment
proclamation is a substantial, material and significant change in
the Respondent’s policy and is a mandatory subject of bargain-
ing. I conclude, therefore, that the Respondent’s unilateral
change in dictating immediate discharge for side work did vio-
late Section 8(a)(1) and (5) of the Act. King Soopers, supra.
7. Changing employees’ work schedule
Casucci’s January 3 memo also stated that employees’ work
hours would start at 7 a.m. and conclude at 4:30 p.m. Prior to
this date some unit employees worked schedules that differed
from these hours.
Work schedule changes are mandatory subjects of bargain-
ing. Pepsi-Cola Bottling Co. of Fayetteville, 330 NLRB 900,
902 fn. 19 (2000); Our Lady of Lourdes Health Center, 306
NLRB 337, 339 (1992). I find, therefore, that the Respondent’s
change in unit employees’ work hour schedules without provid-
ing the Union notice and an opportunity to bargain about the
subject was unlawful. I conclude that the Respondent thereby
violated Section 8(a)(1) and (5) of the Act. Indian River Memo-
rial Hospital, Inc., 340 NLRB 467, 468–469 (2003) (Unilater-
ally changing shift schedules and on-call procedures found to
be an 8(a)(5) violation.)
8. Assignment of extended warranty work
The complaint alleges that the Respondent violated Section
8(a)(5) of the Act when on or about February 19, 2002, it began
assigning extended warranty work to used-car technicians. The
evidence shows that employee Charles Frankhouse wanted to
do extended-warranty work, which gave him the opportunity to
earn more money while working fewer hours. Casucci had
agreed to this assignment for Frankhouse when he hired him.
Around February 2002, Frankhouse observed that some other
technicians were doing extended-warranty work. When he
complained about the matter, Casucci explained to him that the
others had gotten the work because he had not finished a job on
a Dodge vehicle. Frankhouse replied that he had finished his
work on the car, and Casucci said he would then tell Frank-
house’s supervisor to give him the extended-warranty work. No
further assignments of extended-warranty work were made to
other employees thereafter through the remainder of Frank-
house’s employment with the Respondent.
I find that this short assignment of work was not substantial
or material enough to constitute an unlawful unilateral change
under the provisions of the Act. I find that the Respondent did
not violate Section 8(a)(1) and (5) of the Act by this temporary
assignment of extended-warranty work.
9. Changing employees’ paydays
The Government alleges that the Respondent unlawfully
changed unit employees’ paydays. On March 20, the Respon-
dent issued a memo changing its semi-monthly paydays from
the 5th and the 20th of each month to the 10th and the 25th.
Paydays are a mandatory subject of bargaining, and I find that
by unilaterally changing the paydays the Respondent violated
Section 8(a)(1) and (5) of the Act. Abernathy Excavating, 313
NLRB 68 fn. 1 (1993); American Ambulance, 255 NLRB 417,
421 (1981), enfd. 692 F.2d 762 (9th Cir. 1982).
10. Requiring employees to use the timeclock
The Government alleges that the Respondent unilaterally re-
quired employees to punch timeclocks. The Respondent con-
tends it has always maintained a timeclock policy. Several em-
ployees testified that they had not regularly punched the time-
clock when coming to and leaving work. This is contrary to the
Respondent’s written policy as demonstrated by a signed
statement that employees are required to sign upon being
hired—“all personnel punch in and out on the time clock
daily.” The record does not demonstrate that the Respondent
had a general disregard for its timeclock policy prior to the
union activity at the facility. I find that the Government has
failed to prove by a preponderance of the evidence that requir-
ing employees to use the timeclock was an unlawful unilateral
change. I conclude that the Respondent did not violate Section
8(a)(1) and (5) of the Act by enforcing its existing timeclock
policy.
IV. THE RESPONDENT’S ACTIONS AGAINST PRANSKE
The Government alleges that various actions that the Re-
spondent took against employee Thomas Pranske violated the
Act. The Respondent argues that it only imposed discipline
against Pranske because of legitimate concerns surrounding his
work.
A. Brake Rotors
On January 24, 2003, Casucci gave Pranske a CAR for dis-
puted work Pranske had done on some brake rotors. Casucci
told Pranske that the vehicle’s owner had brought it back,
claiming that it was not fixed. Frankhouse worked on the vehi-
cle when it was returned and reported to supervision he found
that the rotors were warped, and they were cut under specifica-
tions. Thus, the dispute centered on whether Pranske should
have replaced warped and under specification brake rotors. In
addition, the CAR stated that Pranske had missed diagnosed a
noisy drive shaft spline binding which was caused by dried
grease. Pranske had worked on the vehicle 40 days prior to the
warning and the vehicle had traveled 337 miles in the interim.
Casucci questioned Pranske as to whether he had measured
the rotors. Pranske told him that he did not because he had been
a technician long enough to know when rotors were too thin.
Pranske also argued that because of the time and mileage that
had elapsed since he worked on the vehicle any problems with
the brakes or driveline could not be attributed to him. Casucci
told Pranske that he was giving him a warning because he was
taking a harder stand for customer satisfaction index purposes.
Pranske was upset about receiving the warning and walked
out of Casucci’s office after signing the warning. Pranske then
DESERT TOYOTA 143
retrieved the rotors and measured them with his micrometer. He
determined that the rotors were over spec. Pranske subse-
quently went to Casucci’s office and told him that he had a
problem with the writeup. He invited Casucci to check the ro-
tors. Pranske measured the rotors in front of Casucci and they
were over specification. Pranske also questioned whether they
were warped. The men went to the brake lathe to see if the
brakes were warped. Before the brakes were tested for warp-
ing, Casucci borrowed another technician’s micrometer.
Casucci measured the rotors and they were thicker than when
they had been measured with Pranske’s micrometer. Casucci
was unsatisfied by this measurement and stated that the mi-
crometer was not zeroed out. After the micrometer was ad-
justed, Casucci again measured the rotors and they measured
even thicker.
Pranske then put one of the rotors on the lathe, where it showed
that it was not warped. Pranske asked Casucci if he should test the
second rotor, and Casucci said that it was not necessary. Casucci
said he wanted to discuss the matter with Frankhouse as he was the
employee who had reported the problem.
After lunch on Monday, January 27, Pranske met with
Casucci, Service Manager Dave Pedersen, and Frankhouse.
Casucci said that he had checked the rotors with Frankhouse’s
micrometer and one of the rotors was under spec. Casucci said
that he had changed Pranske’s warning to reflect that only one
rotor was under spec. Pranske had Casucci bring technician
Ted Gardner to the office to discuss the spline binding prob-
lems. Gardner had worked on the vehicle after Pranske and he
told the men he did not recall hearing any noise, and that if he
had, he would have examined the vehicle on a lift. Despite
Gardner’s recollection, Casucci did not remove the comments
about the drive shaft binding from the warning. Casucci, how-
ever, did give Frankhouse a CAR for not having his micrometer
properly calibrated.
B. Inspection and Insubordination Warnings
On January 29, Casucci summoned Pranske to the office to
receive an additional CAR. Casucci told Pranske the warning
was being issued because he had performed a safety check on a
used vehicle and it was sold with leaks. Pranske explained that
New Car Manager Steve Velasquez had told him to do a bare-
bone inspection of the vehicle, and that Pranske had followed
that direction. Pranske said that Velasquez, Assistant Used-Car
Manager Francisco Novoa, and Company Car Buyer, Steve
Candelaria had gone to Pranske and asked him how much it
would cost to do a full inspection on a 1992 Saturn. Pranske
explained that it would cost over $100 for an hour-and-a-half
inspection, plus another half hour for a smog inspection.
Velasquez told Pranske to go ahead but just to do the safety
items. Pranske did the inspection as instructed and wrote up the
job for 1-1/2 hours, plus the half hour for smog inspection.
Pranske testified that had been asked to do quick safety inspec-
tions before, and he had recorded them in the same manner.
Casucci was not satisfied with Pranske’s explanation and said
that there was not enough documentation concerning the car.
Pranske went and got Novoa and Candelaria, they then met
with Casucci. Novoa and Candelaria told Casucci that Pranske
had done exactly what Velasquez had told him to do. Casucci
said that he could not believe that. Pranske became angry at
Casucci’s response and told him the warning was a bunch of
“b.s.,” that Casucci should quit “screwing” with him, and that
he was getting the warnings because of “union bullshit.”
Casucci told him that he was taking a harder stance and that
type of behavior was not going to be tolerated. The men went
into an office and at the conclusion of their discussion Pranske
left the office and slammed the door. Casucci went to Pranske
on the floor and told him to go home for the rest of the day.
On January 31, Casucci gave Pranske a second CAR for his
“insubordinate” behavior in response to having received the
warning concerning the safety check. The CAR notes Pranske’s
protesting the earlier warning by stating, “This isn’t fucking
right.”
The General Counsel has the initial burden of establishing
that union or other protected activity was a motivating factor in
Respondent's action alleged to constitute discrimination in vio-
lation of Section 8(a)(3). The elements commonly required to
support such a showing of discriminatory motivation are union
activity, employer knowledge, timing, and employer animus.
Once such unlawful motivation is shown, the burden of persua-
sion shifts to the Respondent to prove its affirmative defense
that the alleged discriminatory conduct would have taken place
even in the absence of the protected activity. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983); Electromedics,
Inc., 299 NLRB. 928, 937 (1990), enfd. 947 F.2d 953 (10th Cir.
1991). The test applies regardless of whether the case involves
pretextual reasons or dual motivation. Frank Black Mechanical
Services, 271 NLRB 1302 fn. 2 (1984). “A finding of pretext
necessarily means that the reasons advanced by the employer
either did not exist or were not in fact relied upon, thereby leav-
ing intact the inference of wrongful motive established by the
General Counsel.” Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982). Violations of Sec-
tion 8(a)(4) of the Act are also analyzed using the Wright Line
test. McKesson Drug Co., 337 NLRB 935, 936 (2002).
An Employer cannot simply present a legitimate reason for
its actions but must persuade by a preponderance of the evi-
dence that the same action would have taken place even in the
absence of the protected conduct. GSX Corp. v. NLRB, 918
F.2d 1351, 1357 (8th Cir. 1990). Furthermore, if an employer
does not assert any business reason, other than one found to be
pretextual by the judge then the employer has not shown that it
would have disciplined the employee for a lawful, non-
discriminatory reason. Aero Metal Forms, 310 NLRB 397, 399
fn. 14 (1993); T&J Container Systems, 316 NLRB 771 (1995).
Pranske’s union activities were known to the Respondent be-
cause his signed union authorization card was a matter of re-
cord in the hearing before Judge Parke. Additionally, he had
given testimony in that earlier proceeding which was adverse to
the Respondent. The timing of the warnings Pranske received
were 2 months after Judge Parke’s decision. The Respondent
has employed Pranske as a used-car mechanic for 3 years and
he had not received any warnings prior to the incidents de-
scribed above. Finally, the element of union animus was estab-
lished by the Respondent’s unlawful conduct that Judge Parke
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD144
found violative of the Act and Respondent’s actions found to
violate the Act in this decision. I find, therefore, that the Gov-
ernment has established the necessary preliminary showing that
the discipline given to Pranske was motivated by his union
activities and his having given testimony against the Respon-
dent.
The Respondent argues that Pranske was not discriminated
against and merely received disciplinary warnings that resulted
from his work-related problems. With regard to the first warn-
ing that centered on the disputed brake work the evidence
shows that the matter arose when a fellow employee, Frank-
house, questioned Pranske’s work. The warning given to Pran-
ske was eventually modified to reflect Casucci’s reassessment
of the matter in light of new evidence called to his attention.
Frankhouse also received a warning for his perceived misre-
porting of part of the problem. I find that the Government has
not shown by a preponderance of the evidence that the January
24 warning given to Pranske was motivated by his union activi-
ties or because of his testimony. I conclude, with respect to that
warning, that the Respondent has presented sufficient evidence
that Pranske would have received that CAR regardless of his
union or other protected concerted activity.4
The second and third warnings that Pranske received flowed
from his being asked to perform an abbreviated inspection of a
used car. I find that the Respondent has not satisfactorily ex-
plained Casucci’s actions in rejecting the corroboration stated
by Novoa and Candelaria that Pranske had done precisely what
he had been instructed to do by higher authority. Based on de-
meanor and the record as a whole, I do not credit Casucci that
he was merely disciplining Pranske for faulty work perform-
ance relating to the used-car inspection. Likewise, the third
warning that resulted from Pranske’s frustration about receiving
the undeserved second warning was a continuation of what I
find was discriminatory action taken against him because of his
union activities and his testimony. I find that the Respondent
has not proven it would have given these warnings to Pranske
regardless of his protected activities. I conclude, therefore, that
the Respondent did violate Section 8(a)(1), (3), and (4) of the
Act by giving Pranske the January 27 and 31 warnings.
V. FRANKHOUSE
Charles Frankhouse had previously worked with Casucci at a
California Toyota dealership. Both men were members of the
Union while working at that dealership. Frankhouse subse-
quently met Casucci by chance in Las Vegas and Casucci solic-

4 I have found above that CARs were unlawfully implemented as
part of the PIP program. I restrict that finding to the actual issuance of
the CARs and distinguish the Respondent’s right to discipline employ-
ees for nondiscriminatory reasons. The Respondent is normally privi-
leged to correct or punish employees for poor work or similar problems
that occur in the ordinary course of business. Barnard College, 340
NLRB 934 (2003) (“[T]he fact that one party has violated the Act in a
particular way does not give the other party carte blanche to engage in
any conduct that he chooses.”). Thus, to the extent that this decision
finds the Respondent disciplined employees for nondiscriminatory
reasons, I find those disciplines are not subject to remedial correction
except for the expunging from the Respondent’s records of all CARs
issued to unit employees and not, in any way, using them as part of the
Respondent’s unlawful implementation of its PIP program.
ited him to come to work for the Respondent. Frankhouse ac-
cepted and commenced work on August 12, 2002.
A. October 2002
Frankhouse started attending union meetings after he began
work for the Respondent. Frankhouse also had a union sticker
displayed on his toolbox at work. In approximately October
2002, some employees noticed the sticker and talked to him
about union benefits. Frankhouse subsequently inquired of
Casucci whether the Respondent had a pension plan for the
service technicians. Frankhouse testified that Casucci told him
that the Respondent did not have such a plan but did offer em-
ployees a 401(k) plan. Casucci asked Frankhouse why he
wanted to know about the pension plan and Frankhouse told
him that some employees had asked him about union benefits.
Frankhouse testified that Casucci told him that it was not a
good idea to talk about the Union and that the employees in the
shop were not interested in the Union. Casucci said that if
Frankhouse continued to speak to employees about the Union,
he would be segregated from other employees.
Casucci testified that he recalled discussing benefits with
Frankhouse who had asked him about a pension plan. Casucci
recalled informing him of the 401(k) but did not recall them
discussing anything about the Union.
Based on the demeanor of the witnesses while testifying
about this incident, Casucci’s admission that he did not “recall”
any discussion about the Union and the persuasive recollection
exhibited by Frankhouse, I credit Frankhouse’s version of
events.5
The test of whether an employer’s remarks or actions vio-
lated 8(a)(1)’s prohibition against interference, restraint, or
coercion is not whether it succeeds or fails, but, rather, the ob-
jective standard of whether it tends to interfere with the free
exercise of employee rights under the Act. NLRB v. Grand
Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997);
Fieldcrest Cannon, Inc., 318 NLRB 470, 490 (1995). Having
credited Frankhouse, I find that the Casucci’s remarks to him
did tend to interfere with employee’s Section 7 rights. I con-
clude, therefore, that the Respondent did violate Section 8(a)(1)
of the Act by warning Frankhouse about discussing the Union
and threatening that he would be segregated from other em-
ployees.
B. December 5, 2002
On December 5, 2002, Frankhouse received a written warn-
ing for having a sloppy work area and was told to clean it up
daily. Frankhouse testified that he had never been told he was
required to mop his service bay, and the only employees he

5 It is noted that while Frankhouse’s testimony is credited in this in-
stance, that is not the case regarding some of the rest of his testimony
discussed in this decision. NLRB v. Universal Camera Corp., 179 F.2d
749 754 (2d Cir. 1950) (“Nothing is more common in all kinds of judi-
cial decisions than to believe some and not all [of what a witness
says”.); Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394 (6th Cir.
1968) (“A factfinder–jury, judge or administrative agency–is not barred
from finding elements both of truth and untruth in a witness’ testi-
mony.”); NLRB v. Pat Izzi Trucking Co., 395 F.2d 241, 244 (1st Cir.
1968) (“That part of a witness’ testimony is not believable does not of
itself destroy the rest.”).
DESERT TOYOTA 145
observed mopping the bays were service porters (who are not
part of the bargaining unit). Other employees testified that they
had been told to keep their service bays clean. Frankhouse did
not deny that his work area was in need of cleaning. I find that
this warning was a routine work matter and was not shown to
have anything to do with Frankhouse’s union or protected con-
certed activities. I find that the Respondent did not violate Sec-
tion 8(a)(1) and (3) of the Act by disciplining Frankhouse for
not keeping his work area clean.
C. January 28, 2003
On January 28, Casucci gave Frankhouse the previously dis-
cussed warning for not accurately measuring the brake rotor for
which Pranske was also disciplined. I find that warning has not
been shown to have had anything to do with Frankhouse’s un-
ion or protected concerted activities, rather the evidence dem-
onstrates that it was given as a routine matter for what was
perceived by the Respondent to be poor workmanship. I con-
clude, therefore, that the Respondent did not violate Section
8(a)(1) and (3) of the Act by issuing this warning to Frank-
house.
D. February 25, 2003
The Government alleges that on February 25 the Respondent
threatened Frankhouse with an unspecified reprisal because he
made a request to have a fellow employee represent him at a
disciplinary hearing. It is further alleged that Frankhouse was
discriminatorily discharged on this date. The Respondent de-
nies any threat occurred and Frankhouse’s February 25 dis-
charge was solely the result of his work misconduct.
The events surrounding the February 25 incident started with
Frankhouse and Used-Car Manager Aaron Morey getting into
an argument outside of the reconditioning office. Several wit-
nesses testified about this situation, and the following are my
findings of what the credible evidence shows occurred. Frank-
house was very loud and swearing during the argument.
Casucci was in another part of the shop and heard the commo-
tion. Casucci and Service Manager Dave Pedersen ran to the
reconditioning office to investigate what was happening. After
discussing the dispute with the men, Casucci invited Frank-
house into an office. Frankhouse asked to have a representative
present with him and Pranske was summoned. Frankhouse was
still very upset during the meeting. During the discussion in the
office Pranske tried to persuade Cassuci to only give Frank-
house a suspension because of his conduct. Casucci, however,
decided to discharge Frankhouse. Approximately a week later
Frankhouse was reinstated following a review of the matter by
Layla Holt, human resource manager for AutoNation.
Frankhouse testified that when he requested a representative
be present on his behalf that Casucci told him that it was going
to be harder on him if he had a witness in the meeting. Casucci
testified that when Frankhouse made his request he said, “Char-
lie, come on. Let’s go in the office. Let’s just talk about it.
We’ll fix whatever it is.” Frankhouse, insisted on having a
witness and Casucci recalled saying, “Fine. No problem.” Pran-
ske was nearby during all of the events surrounding the argu-
ment and he testified that Frankhouse was using abusive lan-
guage. Frankhouse asked Pranske to accompany him into the
meeting. Casucci told Frankhouse that he really did not need
Pranske. Frankhouse insisted, however, and Pranske recalled
that Casucci said if it was all right with Pranske to serve in that
capacity he could join them in the meeting. Pranske testified
that at no point did he hear Casucci say anything to Frankhouse
to the effect that it would be harder on him if he had a witness.
Pranske testified that in the subsequent meeting he tried to
intervene on Frankhouse’s behalf, by suggesting that Frank-
house only be suspended. Casucci and Pedersen said they
needed 15 minutes to think it over. Casucci testified that Frank-
house continued to make “a big ruckus” as he left the office.
Pranske’s recollection was similar:
And on the way out the door, Charlie was . . . still being abu-
sive, and telling Vinnie and David that nothing is going to
change. “Aaron’s still not going to treat me fair.”. . . . [H]e
wouldn’t stop being disruptive in the . . . meeting, when I was
trying to get him out of the door so they could talk. And I fi-
nally . . . kind of like grabbed on to his shoulders, “come on
Charlie, let’s go.” And we left the room.
Casucci testified that he was willing to consider Pranske’s
suggestion concerning a suspension in lieu of termination, but
even as Pranske was guiding him out of the office, Frankhouse
was “still ranting. . . . And you know, pretty much at that point,
I just threw my hands up in the air. I can’t help no more.”
Frankhouse and Pranske were subsequently recalled to the of-
fice and Casucci told Frankhouse that he was being terminated.
Pranske testified that he told Frankhouse, “I’m sorry, I tried,
but you wouldn’t shut-up.”
Considering the demeanor of the witnesses, I found Casucci
and Pranske to have the more accurate recollection of what was
said on February 25. I credit their testimony and find that the
Government has failed to prove by a preponderance of the evi-
dence that Casucci threatened Frankhouse for having requested
a witness. I conclude, therefore, that the Respondent did not
violate Section 8(a)(1) of the Act as alleged in the complaint
regarding the February 25 incident.
Regarding Frankhouse’s discharge, the Government has
shown that Frankhouse was a known union supporter and that
the Respondent (through its violations of the Act set forth in
this decision) did demonstrate union animus. The timing of
Frankhouse’s February 25 discharge was contemporaneous
with his union activities. I find, therefore, that the Government
has established the necessary prerequisite to determining
Frankhouse’s termination under Wright Line. In considering the
Respondent’s defense to the discharge I find that it proved that
Frankhouse was being loud and abusive in the shop to the ex-
tent that it was easily observable by shop employees and possi-
bly the public. Casucci attempted to calm the situation and
investigate the matter. Frankhouse remained loud and uncoop-
erative and this ultimately resulted in his temporary termina-
tion. I find that the Respondent has met its burden of showing
that it would have discharged Frankhouse on this occasion re-
gardless of his union or other protected concerted activities. I
conclude that the Respondent did not violate Section 8(a)(1)
and (3) of the Act when it discharged Frankhouse on February
25, 2003. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD146
E. April 2, 2003
On April 2, Casucci and Pedersen held an employee meeting
during which technicians were told that, for safety reasons, they
should leave work by 6:30 or 7 p.m. Frankhouse retorted that
he would leave work when he wanted to. Frankhouse received a
written admonishment for insubordination as a result of his
uncooperative attitude at the meeting. This warning is not al-
leged by the Government to have violated the Act.
F. April 17, 2003
The Government alleges that on April 17 the Respondent
promulgated an overly broad and discriminatory no-solicitation
rule by telling “employees” they:
1. Could not talk to any other service technicians, cus-
tomers, and anyone else, including outside of work,
2. They had to inform their supervisor, Aaron Morey,
that they were leaving their workstation; including leaving
for lunch and the length of time they would be away from
their workstation,
3. They had to secure permission from Aaron Morey to
leave their workstation, and,
4. They were prohibited from going to other auto deal-
erships.
Additionally, the Government alleges that the Respondent
unlawfully isolated and imposed onerous working conditions
on Frankhouse. The Respondent denies that it unlawfully en-
gaged in any of these acts.
On approximately April 17, Frankhouse was working on a
Honda vehicle. He decided on his own that it would be helpful
for him to drive the car to a local Honda dealer to perform di-
agnostic tests. Frankhouse did then take the car to the other
dealership without telling Respondent’s supervision what he
was doing. While at the Honda shop he telephoned the owner to
ask her about the car’s problems. He then returned to the Re-
spondent’s dealership.
At some point before Frankhouse took the car to Honda, the
vehicle’s owner telephoned Service Manager Dave Pedersen to
inquire about the progress of the repairs. Pedersen told her that
he was watching Frankhouse work on the car at that moment.
Casucci testified that Pedersen reported to him that approxi-
mately 20 minutes later the owner had called back and said that
there was no way he had seen Frankhouse working on the car
because Frankhouse had just telephoned her from the Honda
dealership.
Casucci testified that Respondent’s general manager, Bob
Carmendy, had been contacted by the owner and he brought he
complaint to him. Casucci recalled that Frankhouse’s action
had created a “very uncomfortable situation” because nothing
was making sense to the customer and she was irritated and
frustrated. Casucci testified that as a result of the incident he
told Frankhouse he did not want him talking to customers. He
also told him not to take cars to other dealers because, “I can’t
have somebody unauthorized bringing a vehicle to another
facility, that I might be charged.” Casucci also noted that
Frankhouse had been “disappearing a lot.” Casucci told Frank-
house that if he had a problem with a vehicle that he could not
fix, he was to inform supervision who would get the car to the
manufacturer dealer under controlled circumstances. Casucci
recalled that a few minutes later Frankhouse came up to him
and Pedersen and, in a scenario that reminded him of the “Twi-
light Zone,” voiced to Pedersen that Casucci had just told him
he could not talk to customers, people at work, friends, or tech-
nicians. Casucci questioned Frankhouse as to what he was talk-
ing about, and reiterated, “Just please, don’t talk to Desert Toy-
ota customers. That’s it. I don’t care what you do after work.
Talk to your co-workers, but please do not talk to customers.”
Frankhouse stated that normally the service writer would
speak to customers, but he would do so “on occasion.” He re-
membered that the vehicle’s owner was upset when he told her
that he was working on the car at the Honda dealership and she
told him that somebody is “lying to me.” Frankhouse testified
that when he returned to the Respondent’s shop Casucci was
angry about him speaking to the customer and going to Honda
with the car. Casucci told him that he was not to speak to any-
one in or out of the dealership, and not to go anywhere without
clearing it with Morey, and “he said he didn’t want me going to
any more dealerships.” He recalled that a few days later,
Casucci came to him and said he only had to tell Morey when
he was going to test drive a car or go to lunch.
The respective demeanor of the witnesses leads me to credit
Casucci as to what he told Frankhouse about restrictions on his
activities and the reasoning behind those restrictions. I find that
the Respondent’s reaction to Frankhouse’s unauthorized taking
of the vehicle to another dealer, and the resulting customer
distress this caused, was a legitimate business response to the
situation that Frankhouse had created. The Government has not
shown by a preponderance of the evidence that the restrictions
given to Frankhouse were the result of his union or other pro-
tected concerted activity, and, therefore, I conclude that the
Respondent did not violate Section 8(a)(1) and (3) of the Act by
imposing the restrictions upon him.
G. April 24, 2003
The Government alleges that on April 24 the Respondent
gave Frankhouse an undeserved CAR. The Respondent argues
that the personnel action was issued to Frankhouse only be-
cause of his careless work and record keeping.
Frankhouse was written up on April 24 regarding a vehicle
that was returned for service after he had worked on it. The car
had additional oil leaks that he apparently had not detected. He
was notified that he should dedicate more time to quality con-
trol of his repairs, use a 5-mile test drive route to check on his
engine repairs and be sure to record his in/out miles in the des-
ignated place on the Respondent’s repair records. I find that the
preponderance of the record evidence does not establish that
this written warning was motivated by Frankhouse’s union or
protected concerted activities. I conclude that the Respondent
did not violate Section 8(a)(1) and (3) of the Act by giving
Frankhouse the April 24 warning.
H. Frankhouse’s Termination
On May 7, Casucci called Frankhouse into the office to rep-
rimand him about his poor work on a car that had been returned
with continuing brake problems. Casucci also intended to chas-
tise him for his continued disregard of instructions to record
DESERT TOYOTA 147
mileage when he took a vehicle out of the shop. Also present at
the meeting were Supervisor Pedersen and employee Pranske,
who was present to represent Frankhouse. It is undisputed that
Frankhouse became agitated as the men discussed the work
problems and he eventually walked out in the middle of the
meeting. Frankhouse then went to his toolbox, locked it, and
left the premises. Pranske testified that he sarcastically com-
mented on Frankhouse’s behavior to the two supervisors by
stating, “Well that went real well.”
Approximately a day later, Frankhouse returned to the Re-
spondent’s dealership to pick up his paycheck. Casucci and
Pedersen talked to him and Casucci told Frankhouse that he
would telephone the next day to let him know what was going
on with his employment situation. Pedersen asked Frankhouse
for his phone number and Frankhouse replied that Pedersen
could get it from the personnel department. Casucci testified
that Pedersen said, “Come on Charlie; just give me the phone
number.” Frankhouse asked if Pedersen was “too lazy to go up
there and get it.” Casucci then intervened and told Frankhouse,
“Charlie, please go. I’m going to go to personnel . . . to . . . get
your telephone number. . . . [J]ust please leave.” Finally
Casucci testified that he discharged Frankhouse and told him,
“Charlie, you know, we just can’t have it anymore . . . I just
can’t stick up for you anymore.”
Pedersen subsequently wrote in Frankhouse’s personnel re-
cords that the termination resulted because:
Differences are irreconcilable—Charles has made the deci-
sion to commit acts of insubordination too many times and
has shown absolutely no remorse or effort to refrain from this
behavior. For this reason we have decided to terminate his
employment.
As noted above, I found that the Government met its burden
of making a preliminary showing that is sufficient to analyze
the Respondent’s actions concerning Frankhouse under the
Wright Line standards. With regard to his final termination in
May, the Respondent has proven by the credible evidence that
Frankhouse walked out of a disciplinary meeting and left the
premises. Upon his return he uncooperatively would not give
Pedersen his home phone number. The record demonstrates that
this was the final event in a long series of confrontations and
work problems that the Respondent attributed to Frankhouse.
Despite numerous warnings and Casucci’s efforts to tolerate
Frankhouse’s idiosyncrasies, matters had not worked out to the
Respondent’s satisfaction and Frankhouse was terminated. I
find that the record as a whole demonstrates that the Respon-
dent has proven that it would have discharged Frankhouse on
this second occasion without consideration for his union or
protected concerted activities. I conclude that the May 2003
discharge of Frankhouse did not violate Section 8(a)(1) and (3)
of the Act.
VI. EMPLOYEE WORK OPPORTUNITIES
A. Decreasing the Work of the Unit as a Whole
The Government’s complaint alleges that the Respondent
hired new employees into the unit in an unlawful effort to di-
minish work opportunities for union supporters. From Septem-
ber 2002 to June 25, 2003, the Respondent hired 15 unit em-
ployees. During that same period, 13–14 unit employees left
the Respondent’s employ. The Government’s posthearing brief
concedes that, “[i]n light of this evidence produced at the hear-
ing showing that both the unit and the available work remained
fairly constant, there is little support for this allegation.” I con-
cur and find that the Respondent did not violate Section 8(a)(1)
and (3) of the Act by hiring employees for work within the
collective-bargaining unit.
B. Reducing Flag Hours of Union Supporters
The Government alleges that from January 1 through May
31, 2003, the Respondent reduced the flag or flat rate hours
earned by employees who had signed cards with the Union.
“Thus, although it does not appear that the Respondent de-
creased the average work given to technicians, it decreased the
amount of work assigned to Union supporters, thereby lowering
their income.” (GC Br. at 23.)
The Government points out that the Respondent had knowl-
edge of which unit employees supported the Union because
their union authorization cards were introduced into evidence in
the hearing before Judge Parke. The Government argues that
based upon this knowledge the Respondent set about retaliating
against union supporters by decreasing the number of flag
hours (flat rate hours) assigned to them. The Government bases
this argument on a work hour comparison with other employees
who did not sign union cards including Jim Stidham and Jim
Breeden. The Government prepared a table of work hours of
the months of January through May for the years 2002 and
2003 (GC Br. attachment A). The Government concludes that
this flag hour comparison demonstrates unlawful discrimination
in the work assignments. I cannot agree with that conclusion.
The table does show that some card signers did work no-
ticeably fewer hours in 2003 (Bryant and Pranske); that em-
ployees Contreras, Halter, Nabizada, and Stidham only worked
2–3 of the months used for the 2003 comparison; and that union
supporters Miller, Schwarz, and Wilson worked significantly
more hours in the comparative 2003 period. The table also
shows that Breeden, who apparently did not support the Union,
worked significantly more flag hours in 2003. For the same
2003 period, however, Stidham worked fewer in 1 month, more
in 2 months, and no longer worked for the Respondent in the
remaining 2 months of the comparison period.
Since Pranske is included in this group and did work less
flag hours in 2003, I have particularly scrutinized his situation
in light of the finding that he was given unjustified warnings for
his protected activities. Pranske’s 2003 reduced flag hours were
very similar in three of the months as those of Stidham whom
the Government argues was unjustly rewarded because of his
antiunion attitude. The same conclusion results when compar-
ing Pranske with Gardner, who did not sign a union card. Thus,
while Pranske’s 2003 reduced hours are suspicious, it is much
less so when his 2003 monthly hours are compared with these
two nonunion supporters as well as the unit employees as a
whole.
The Respondent argues that it did not discriminatorily
change the work assignments of employees who supported the
Union. The Respondent points out that the number of flag hours
available for assignment varies greatly on a monthly basis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD148
Importantly, the total shop hours also dropped from 9000 in
January 2002, to 7000 in May 2003. Casucci testified that he
attributed this decrease to the opening of Centennial Toyota, a
fourth Toyota dealership in the Las Vegas area. An analysis of
the comparative total monthly flag hours (using the General
Counsel’s attachment A figures) shows that all the listed tech-
nician employees worked 17 percent fewer flag hours in the
2003 period.
MONTH
2002 FLAG
HOURS
2003 FLAG
HOURS
January 3181 3120
February 2913 2746
March 3525 2633
April 3314 2876
May 3568 2698
Total 16501 14073
In sum, the evidence shows that the comparative periods are
relatively short, the records demonstrate a mixed picture of
some union supporters working more hours in 2003 while some
worked less, there was a decrease in total flag hours worked
between the 2002 and 2003 periods, and there is no substantial
evidence that the Respondent had motivation to assign less
work to union supporters generally. I find the General Counsel
has not met the weighty initial burden of showing that the Re-
spondent discriminated against technician employees who sup-
ported the Union by decreasing their flag hour assignments in
the designated 2003 period. I conclude the Respondent did not
violate Section 8(a)(1) and (3) of the Act in its assignment of
flag hours to its unit employees. Wright Line, supra.
CONCLUSIONS OF LAW
1. T-West Sales & Service, Inc. d/b/a Desert Toyota, Inc. is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The International Association of Machinists and Aero-
space Workers, Local Lodge 845, AFL–CIO (formerly Local
Lodge 744) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1), (3), (4), and
(5) of the Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent has not violated the Act except as herein
specified.
[Recommended Order omitted from publication.]