Jim Causley Pontiac, Division

National Labor Relations Board - Board Decisions

Dec 12, 1980

253 N.L.R.B. 695 (N.L.R.B. 1980)

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