Kids Automotive, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 13, 2005

27-CA-018809 (N.L.R.B. May. 13, 2005)

JD(SF)-41-05
Denver, CO

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA

KIDS AUTOMOTIVE, INC./KIDS FINANCIAL INC./
BRANDON FINANCIAL, INC., Joint Employer and/or
Single Employer,
Respondent

and Case 27-CA-18809

JIM ABRAMS, An Attorney,
Charging Party

Barbara E. Blanton Greene, Esq.,
for the General Counsel
Timothy L. Nemechek, Esq.,
for the Respondent
Jim Abrams, Esq., and
Elisa Moran, Esq.,
for the Charging Party

DECISION 1

Albert A. Metz, Administrative Law Judge. The issues presented are 1.) jurisdiction and
identity of the Respondent, and 2.) whether the Respondent interfered with, restrained and
coerced Georgene Wayne, including reducing her pay because she engaged in protected
concerted activity under Section 8(a)(1) of the National Labor Relations Act.2 On the entire
record, including my observation of the demeanor of the witnesses, and after considering the
briefs filed by the parties, I make the following findings of fact.

1 This case was heard at Denver, Colorado, on January 19-20, 2005. All dates herein are 2003
unless otherwise specified.
2 29 U.S.C. § 158 (a)(1).

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I. JURISDICTION

The three entities named in the complaint are Kids Automotive Inc. (Auto), Kids
Financial Inc. (Financial) and Brandon Financial (Brandon) and are referred to jointly as
Respondent. The complaint alleges that they constitute a single and/or joint employer for
purposes of this litigation. Their joint answer denies they are either a joint employer or a single
employer and asserts that the only proper Respondent to this proceeding is Brandon for whom
the alleged discriminatee, Georgene Wayne, worked. Brandon denies that it is engaged in
commerce within the meaning of the Act. As discussed below I find that the three entities are a
single employer and an employer within the meaning of the Act.

II. BUSINESS OPERATIONS

Auto and Financial began business in approximately October 1994. Auto operates a sub-
prime or bad credit automobile sales lot with four locations in the Denver, Colorado metropolitan
area. Financial handles financing of automobiles sold by Auto. Auto’s primary business facility
is located at 1300 West Alameda in Denver, Colorado. Auto and Financial occupy the same
building at the West Alameda facility.

Brandon commenced operations as a finance company in approximately June 1993.
Brandon’s business was centered upon the purchase of sub-prime notes from new car dealerships
owned by William Douglas Moreland. Brandon is also located at 1300 West Alameda in a
building on the northwest side of Auto’s parking lot.

Auto, Financial and Brandon have the same ownership and corporate officers. Douglas
Moreland is the President of the three corporations with 30% ownership. Philip Harris is the Vice
President of the three corporations and has 10% ownership in each corporation. Douglas
Moreland’s four children own 15% of all three corporations. Cynthia Carlheim is the corporate
secretary of all three corporations. Gary Campbell is the corporate treasurer of Auto and
Financial. Philip Harris, vice president and general manager, is responsible for managing the
day-to-day operations of Auto, Financial and Brandon.

The pay checks of employees of all three corporations bear the Auto name as their
employer. Similarly, the W-2 forms received by employees of the three corporations identify
Auto as their employer. Auto pays the federal and state taxes of all three corporations. These
corporations share one company, ADP, which provides their payroll services. The Respondent
maintains one workmen’s compensation policy that covers all employees of the three entities.
Auto has received a tax refund that resulted from a write-off issued to Financial. Employees of
Auto and Financial share one telephone system, the same break room and the same restroom
facilities.

Employees of the three corporations are covered by the same health insurance policy with
Kaiser Permanente and Auto pays the health insurance premiums for all of these employees. The
same is true of the employees’ dental insurance policy. Auto also provides life insurance coverage
for all three corporations’ employees. The Respondent maintains one managers’ policy for

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managers of Auto, Financial and Brandon. The Respondent also has one 401(k) plan for employees
of the three corporations. Respondent has one disability insurance policy (AFLAC) for all of the
Auto, Financial and Brandon employees and this policy is paid for by Auto.

Employees are allowed to transfer between companies within the Moreland Group. Such
transfers are effectuated through one document used by all three entities. These corporations have
one “Vacation Request and Approval” form that is used by employees of the corporations and the
same vacation policy applies to all of the employees. The employees are granted the same holidays,
except the retail automotive sales employees. The same “Absence Report” form is used with respect
to all three corporation’s employees.

Nancy Castanon, the Controller for Auto, performed services for Financial, including
providing all the financial statements, supervising the cashier, deposits, paying bills, and bank
reconciliation. She printed financial statements for Auto, and assisted in the audits conducted for
the Respondent. Castanon also performed month end closings for Auto, Financial and Brandon.
She was also involved in the installation of software at all three corporations.

Some employees of Auto and Financial work out of the Brandon building and they share
one telephone system. These employees also share the same fax machine, toilet facilities, and have
the same computer system.

The day-to-day records for Auto and Financial are kept together within the same building.
The long-term records for Auto, Financial and Brandon are stored at the Respondent’s Federal
Boulevard store. The three corporations use Bank One as their common bank.

III. THE EMPLOYMENT OF GEORGENE WAYNE

Brandon started operations in 1994, specializing in car financing for individuals with
poor credit. Georgene Wayne was hired at Brandon in 1996 as a credit buyer and then progressed
to collections and finally to manager. As a manager she supervised four employees whose job
was to collect on loans. Brandon had approximately 400 collection accounts at its peak business
period. Wayne was paid a base pay of $3,000.00 per month, plus bonuses during the time she
was managing employees at Brandon’s facility located on South Emporia Street in Denver. In
approximately May 2001 Brandon’s operations were moved to 1300 West Alameda in Denver.
All of the Brandon employees, except Wayne, were terminated at that time. Contemporaneous
with the move Wayne’s pay was raised to $4,000.00 per month as an adjustment to compensate
her for the absence of a bonus. When Wayne moved to the Alameda location, she was the only
employee for Brandon and was supervised by Phil Harris. Also in 2001 Brandon stopped
acquiring new retail finance accounts and that part of the business began winding down. In place
of that business Brandon started to concentrate on doing wholesale financing where it provided
financial backing to a subcontractor, Ken Auser, who was wholesaling cars. After the relocation
Wayne was no longer a manager but an administrative clerk whose duties included collecting the
dwindling present and past due retail accounts and assisting Auser in the running of his
wholesale car business. Even though Wayne’s duties changed from managerial to
administrative, her pay of $4,000 a month remained the same until July 1, 2003, at which time
her pay was reduced to $3,000.
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As Brandon was no longer buying new paper the number of accounts dropped and
Wayne had less accounts to oversee each month as individual accounts were written off. By
February 2003 there were only 58 accounts remaining in the Brandon inventory. Wayne testified
as an expert witness in an unrelated case in February 2003, that she knew that Brandon’s
business was winding down and that, as a result, she had been looking for employment with
other companies. Harris, Brandon’s Vice President and General Manager, discussed the
diminishing business with Wayne on several occasions starting in May, 2001. Wayne admitted
that the subject was discussed and that part of the discussion concerned her compensation.
Wayne was interested in increasing her pay and Harris testified that he advised her that she
needed to become more involved in the wholesale aspect of the business if she was to receive
more pay. Wayne, however, was dissatisfied at having to work with Auser whom she considered
difficult and abrasive towards her. Wayne testified that prior to March 2003 she had discussed
with Harris her frustrations at having to work with Auser. Part of that discussion was her telling
Harris that she was considering quitting, although she never gave formal notice that she was
terminating her employment.

In late 2002 and early 2003 the Respondent installed a new computer system. Wayne’s
job was effected by the new system in that she no longer had to make entries by hand as these
duties were progressively being computerized.

IV. WAYNE’S PROTECTED CONCERTED ACTIVITY

Wayne worked at the Alameda location in the same building as Financial’s Pre-legal
Specialist, Lucille Fancher, and Attorney, Andrew Nimtz. Gary Campbell, Operations Manager
for Financial and Auto had instructed Wayne to turn off the computers in the Brandon building at
the end of the work day. One morning in March 2003 Wayne arrived at work and noticed that
her computer was on and displayed a pornographic picture on the screen. The computer software
showed that six other pornographic sites had been visited. Wayne informed Fancher about the
pornography on the computer.

On or about May 21 Fancher was leaving her work desk, she turned and noticed Nimtz
was looking at porn on his computer. Fancher immediately went to Wayne and told her what she
had observed. Wayne told Fancher to report the matter to her manager. Fancher did complain to
Financial’s Collections Manager, James Malaterre, about Nimtz viewing the pornography.
Malaterre told her that he would speak with Gary Campbell about the matter. Fancher also
spoke with Robert York, Financial’s Profit and Loss Manager, and advised him of the situation.
Fancher did not receive any response to her report and on May 22 she gave Malaterre a written
complaint regarding Nimtz viewing pornography on his computer.

Within a day Wayne and Fancher together approached Malaterre about the pornography.
Malaterre told Wayne to report the problem to Philip Harris and suggested that she check Nimtz’
computer to determine what websites he had visited. Later that day Wayne and Fancher did
access Nimtz’ computer and noted that websites that had been visited included “Desirees” and
“hard-coreporn.com.” The women then reported their findings to Malaterre. Malaterre testified
that he reported Wayne and Fancher’s complaints to Campbell the next day.
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Wayne also told Harris about Fancher seeing Nimtz watching pornography on the
company computer. Harris told Wayne that he would discuss the situation with Campbell who
would then meet with Nimtz. Wayne told Fancher about her discussion with Harris and the
promised meeting between Campbell and Nimtz.

Harris did discuss the matter with Campbell who then summoned Nimtz to his office.
Nimtz told Campbell that the pornographic material had been attached to an e-mail he had
received and that it was an innocent occurrence. Campbell, nonetheless, issued Nimtz a written
warning on May 23.

A few days later, Campbell told Fancher that the situation had been handled. Fancher
was not satisfied by this explanation and remained upset.

After Nimtz had viewed the pornographic websites it became a daily occurrence that
Wayne’s computer would display pornographic pop-ups. Wayne showed Fancher and Castanon
these pornographic pop-ups. Wayne complained to Harris at least twice about the pop-ups.
Harris told her the company was also having the same problem at the Federal Boulevard site.
Campbell confirmed there was a pornographic pop-ups problem within the company computer
system at various locations.

Wayne continued having problems with daily computer pornographic pop-ups and
Fancher was not satisfied with the resolution of her complaint. Fancher testified that she did not
think her complaint had been taken seriously and she did not feel safe. Wayne and Fancher
discussed the matter and decided that Wayne would telephone Respondent’s President, Doug
Moreland.

On June 9, while Harris was out of town, Wayne telephoned Moreland. Wayne testified
she told Moreland about the concerns she shared with Fancher over computer pornography. She
related to Moreland that Fancher was upset with the way the pornography issue had been dealt
with and was talking about filing an EEOC charge. Wayne told Moreland that she wanted to
protect the company. Wayne requested that Moreland speak with Gary Campbell and Nancy
Castanon about the pornography problem. She also complained that Harris was not treating her
suitably; she needed a transfer and also mentioned she was contemplating quitting. Moreland
asked her for a little time to look into the matters she raised, and Wayne agreed. Moreland said
he would get back to her. After her conversation with Moreland, Wayne told Fancher about the
telephone call.

Moreland testified that Wayne had indeed spoken with him and that the discussion
included Wayne having a problem with Harris; about Fancher being unhappy with the resolution
of her exposure to pornography; and Wayne’s perception of mistreatment by subcontractor Ken
Auser with whom she regularly worked. Moreland asked her not to quit and said he would
contact Campbell and discuss matters with him. Campbell testified that he was contacted by
Moreland and asked if Harris was sexually harassing Wayne and if the Nimtz pornography
situation had been handled. Campbell reported to Moreland that Nimtz had been reprimanded
and said that he did not believe that Harris was sexually harassing Wayne.
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Moreland left town after the telephone conversation with Wayne. Eventually both Harris
and Moreland returned to Denver and Harris presented Moreland with a new pay program. This
led to a discussion about Wayne, her work at Brandon and Rich Thayer, another employee who
worked for Kids, and whose situation is not directly involved in this case. Moreland testified that
prior to this meeting Harris had regularly assured him that Wayne had been diligently working
on collecting the current accounts and going after those that had been charged off and taken as a
financial loss. Moreland discovered that Wayne had not been pursuing the delinquent accounts
and was not doing as much work as when she was raised to $4,000 per month. Moreland blamed
Harris for misleading him into believing that the Brandon operations were doing fine and he
threatened to fire Harris. Moreland told Harris he was not going to pay Wayne her present salary
in light of her present work. Moreland made a similar decision with regard to Thayer whose job
duties had also changed. Moreland told Harris to issue Wayne a written job description that
detailed all of her duties.

On approximately June 23 Harris came to Wayne’s office. Wayne testified that Harris
was very angry and yelled at her, "Georgene, that was low, I can't believe you called Doug."
Harris continued, "I can't believe you called Doug [Moreland], and you need to quit. Why don't
you just quit?" Wayne said she was waiting for Moreland to get back to her. Harris said that
Moreland was not going to get back to her and had nothing else for her, and she needed to just
quit. Harris then left the office. Fancher was in the same area and overheard part of Harris’
remarks. She testified she heard him say that, “I can’t believe that you would be so low to call
Doug on this.” Fancher also described Harris as being “very upset” and using a raised voice.

Harris recalled the encounter somewhat differently. He remembered he walked into the
office and Wayne asked him if he had talked to Moreland. Although Harris replied, “No,” he
conceded in his testimony that he knew what she was referring to. Harris remembered that Wayne
said that she had called Moreland, and he asked why. Wayne told him that it was because she could
not work with him or Auser anymore and before she quit she wanted to know if there was another
position for her. He asked her if that meant she was going to quit. Wayne told him, “probably.”
Harris questioned her about what she meant by “probably” and questioned her as to whether she
was going to quit or not. Wayne told him that she probably was going quit. Moreland testified that
he said, “Okay” and walked out of the office. He testified that he may have yelled at Wayne at the
end of their conversation, but denied ever saying how dare that she call Moreland, or that he
threatened her in any way.

I have carefully considered the testimony regarding Harris’ meeting with Wayne
concerning her call to Moreland. That consideration includes the demeanor of the witnesses,
Francher’s partial corroboration of Wayne’s version of events, the background that Harris
provided that he came close to getting fired by Moreland because of clouding the financial
situation at Brandon, and his concession that he may have yelled at Wayne at the end of their
meeting. Based on my assessment of all of these factors, I credit Wayne’s version of what Harris
said to her.

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Harris testified that he had a second conversation with Wayne a couple of days before
June 27. He asked her if she was in fact going to quit. Wayne replied that she wished that she
could but that she was not in a position to quit.

At the end of the day on June 27 Harris came to Wayne’s office and gave her a written
job description setting forth her job duties. The document stated that her job was to be paid at
$3,000 per month, $1,000 less than she had been earning. Wayne testified that the job duties
described in the document were the same that she had been doing, although it did note that she
should collect old accounts (skip tracing). Wayne testified that she had done this work, but only
when she had the time for it. The job description was effective on July 1, 2003. After telling
Wayne that she needed to sign the job description, Harris left the office.

Castanon testified that on June 30 Harris was in her office and said that he had a new
employee who was to start working at Brandon. Castanon commented that this was good in case
Wayne decided to leave. Harris replied, “You know what? Going to Doug was the stupidest
thing she could have done -- was the worst thing she could have done." Harris continued,
"Doesn't she understand that the only thing Doug cares about is making money?"

Harris confirmed that he did discuss Wayne with Castanon. He recalled that he said, that
going to Moreland was the worst thing that Wayne could have done. He explained that he meant
by that remark that it was a mistake for her to draw Doug Moreland “into this.” He testified that
he had been covering for Wayne and her pay for a long time so that she could continue to make
what she was being paid. He acknowledged that he had put Moreland off when questioned about
the Brandon business and noted that, “I knew how busy he was, and Brandon Financial was a
very small part of our business, and it was one employee ..., and I was responsible for her.”
Harris stated that he knew Moreland “is all about the business and all about money and all about
dollars in and dollars out.”

Wayne ceased her employment with Brandon in January 2004. Her work was then
performed by employees Lisa Musso and Jessie Dekan. Musso is an employee in the payroll
department of Auto and Dekan is an accounts payable employee of Auto. Musso testified that it
took her about 9-11 hours a month to do her part of Wayne’s prior work. Dekan testified that she
spent approximately 10-15 hours a month doing her part of Wayne’s prior work.

On February 20, 2004, a “Notice of Decision” was issued by the State of Colorado
Department of Labor and Employment and awarded Wayne unemployment “benefits attributable
to this employment”, naming Auto, located at 1300 West Alameda Ave, Denver, Colorado, as
her employer.

V. ANALYSIS

A. The Single and Joint Employer Issue

The Respondent denies the allegations of the complaint that the three entities composing
the Respondent are a single and/or joint employer. The Board applies four criteria in determining
whether separate entities constitute a single employer: (1) interrelation of operations, (2)
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common management, (3) centralized control of labor relations, and (4) common ownership or
financial control. Hydrolines, Inc., 305 NLRB No. 40 (1991);Continental Radiator Corp., 283
NLRB 234 at fn. 4 (1987). No one of the four criteria is controlling nor need all be present to
warrant a single-employer finding. Blumenfeld Theatres Circuit, 240 NLRB 206, 215 (1979),
enfd. 626 F.2d 865 (9th Cir. 1980); Emsing's Supermarket, 284 NLRB 302 (1987), enfd. 872
F.2d 1279 (7th Cir. 1989). The Board has stressed that the first three criteria are more critical
than common ownership. Airport Bus Service, 273 NLRB 561 (1984), disavowed on other
grounds in St. Marys Foundry Co., 284 NLRB 221 fn. 4 (1987).with particular emphasis on
whether control of labor relations is centralized, as these tend to show ``operational integration.''
NLRB v. Al Bryant, Inc., 711 F.2d 543, 551 (3d Cir. 1983), and cases cited therein. ``[S]ingle
employer status depends on all the circumstances of the case and is characterized by absence of
an `arm's length relationship found among unintegrated companies.''' Id.

The Respondent’s Answer admits that Auto, Financial, and Brandon are closely held
corporations with the same shareholders and officers. The Respondent admits the various
corporations are engaged in selling and financing automobiles. Respondent admits in its Answer
“that the payroll function for each of the entities is administered by ADP an outside payroll
service.” Respondent further admits with regard to Auto “that salary, check withholding,
including taxes and fringe benefits are paid under its payroll for the employees at Auto, as well
as the one employee of Brandon (Georgene Wayne) at all times relevant herein.”

The Respondent’s operations show a large degree of integration as detailed above. The
ownership, supervision and interrelationship of personnel, facilities and labor relations have been
proven by the Government by a preponderance of the evidence. Based on that evidence I find an
interrelation of operations, common ownership, common management, and centralized control of
labor relations. I conclude that the three entities that comprise the Respondent are a single
employer. CM Office Services, 338 NLRB No. 102 (2003) (Respondent found single employer
where among other factors its operations were affiliated business enterprises with common
officers, ownership, directors, management, and supervision; that formulated and administered a
common labor policy; had shared common premises and facilities; provided services for each
other; had interchanged personnel with each other; had interrelated operations in areas of
insurance, phone, accounting, bookkeeping, banking, and intermingled finances.) See also: Hahn
Motors, 283 NLRB 901 (1983).

The Respondent’s joint answer admits that the combined operations of Auto and Finance
annually purchase and receive goods and materials valued in excess of $50,000 directly from
points and places outside the State of Colorado and that they annually derive gross revenues in
excess of $500,000. Auto and Finance admit, and I find, that at all times material they were an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Having found that Brandon, Auto and Financial are a single employer, I additionally find that the
Respondent’s operations do effect commerce as alleged in the complaint. I conclude that, at all
times material herein, this single employer was an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
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B. The Concerted Protected Activity Issue

The Government alleges that Wayne was engaged in protected concerted activity when she
discussed with employee Fancher and management their mutual concern about the pornography on
the Respondent’s computer system. The Respondent denies that Wayne was ever engaged in
protected concerted activity.

Section 7 of the Act protects the rights of employees to engage in “concerted activities for
the purpose of collective bargaining or other mutual aid or protection.” As the Board stated in
KNTV, Inc., 319 NLRB 447, 450-451 (1995):
An employee's activity will be deemed concerted, when it is engaged in with or on the
authority of other employees, and not solely by and on behalf of the employee himself.
Pacific Electricord Co. v. NLRB, 361 F.2d 310, 310 (9th Cir. 1966), enfg. 153 NLRB
521 (1965). Concerted activity encompasses activity which begins with only a speaker
and listener, if that activity appears calculated to induce, prepare for, or otherwise relate
to some kind of group action. Root-Carlin, Inc., 92 NLRB 1313, 1314 (1951); Atlanta
Newspapers, 264 NLRB 878, 879 (1982).

I find that Wayne and Fancher were engaged in concerted activity protected by the Act
when they discussed the workplace pornography issue among themselves and with management.
Their discussions clearly related to their working conditions, their concern about correcting a
disturbing problem in the workplace and their agreement that Wayne would present the issue to
Moreland is the essence of concerted protected activity. Wayne thus telephoned Moreland on
June 9 and discussed with him, among other matters, Fancher’s continuing concern about the
pornography situation, Fancher’s perception that the matter had not been resolved satisfactorily
by management and Fancher’s contemplation of filing an EEOC complaint against the
Respondent. Wayne’s contacting of management on behalf of herself and Fancher regarding the
pornography issue was concerted activity protected under the Act. Every Women’s Place, 282
NLRB 413 (1986). I further find that to the extent Wayne also complained to Moreland about her
individual work troubles and her personal decision to quit, that she was not engaged in concerted
activity.

C. Harris’ Remarks to Wayne Regarding Her Call to Moreland

The Government alleges that when Harris confronted Wayne about her telephoning
Moreland that he unlawfully coerced her for her protected concerted activity. The Respondent
asserts that there was nothing unlawful said by Harris to Wayne in that meeting.

The credited evidence shows that Harris was distraught about Wayne going over his head
to Moreland about the concerns she voiced in the June 9 phone call. Her call to Moreland
resulted in his instigation of calls to Campbell to inquire into the matters raised, including was
Harris treating Wayne poorly. When Moreland later met with Harris he was upset about Harris
misleading him into believing that Brandon’s operations were as profitable as possible. Moreland
also assessed Wayne’s relative high pay versus what he perceived to be her present job duties.
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Moreland was also distressed about another of Respondent’s employees earning more pay than
what Moreland thought was appropriate. Moreland took his ire out on Harris whom he held
responsible for poor management of these issues. He threatened to fire Harris for his poor
management and lack of candor about the operations of Brandon and the perceived overpayment
of Wayne for her work. Moreland told Harris he was not going to pay the two employees what
they were presently making for the work they were then performing. Against this background
Harris then confronted Wayne on June 23 accusing her of being “low” for contacting Moreland
directly and telling her she needed to quit.

As discussed above, part of the reason Wayne had contacted Moreland was the
pornography issue – an issues of mutual concern between her and Fancher. I find that because
Harris did berate Wayne, about going to Moreland and urge her to act on her prior intimations of
quitting that his conduct did threaten, restrain and coerce Wayne, at least in part, because she had
engaged in protected concerted activity. I conclude that because of this conduct the Respondent
did violate Section 8(a)(1) of the Act. Fieldcrest Cannon, Inc., 318 NLRB 470, 490 (1995) (The
test of interference, restraint or coercion is not whether it succeeds or fails, but, rather, the
objective standard of whether it tends to interfere with the free exercise of employee rights under
the Act.)

D. Wayne’s Reduction in Pay

The Government alleges that Wayne’s reduction in pay was the result of her protected
concerted activity in protesting about the pornography issue. The Respondent asserts that the
reduction came about from Moreland’s assessment that Wayne was not performing work
deserving of her $4,000 salary.

The evidence shows that the Brandon business had become a very small part of the
Respondent’s overall operations. The Brandon business had changed over the years and was fast
becoming a wholesale car operation depending solely upon the business generated by
independent contractor Ken Auser. Wayne’s duties had admittedly changed along with the
business and the dwindling retail operation was quickly becoming insignificant as far as
generating income for Moreland. Likewise for at least several years Wayne was no longer
supervising others at Brandon but was the sole employee of the corporation. Harris admitted that
he had not been candid with Moreland about the Brandon business and Wayne’s role at that
business. Wayne admitted that she did not vigorously pursue the delinquent accounts of
Brandon’s retail paper. The record evidence suggests that there was not a great deal of work
involved in what remained of the Brandon operations in the summer of 2003. Thus the testimony
of the Respondent’s employees who took over for Wayne when she quit her position showed
they spent only a total of 20 to 26 hours a month doing the administrative work that Wayne had
been compensated for as full-time work.

The General Counsel has the initial burden of establishing that protected activity was a
motivating factor in Respondent's action alleged to constitute discrimination in violation of
Section 8(a)(1). Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). The elements commonly required to support such a showing of
discriminatory motivation are employer knowledge, timing, and employer animus. Once such
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unlawful motivation is shown, the burden of persuasion 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.

Based on the record as a whole I find the Government did meet its initial Wright Line
burden of showing that Wayne’s concerted protected activity was contemporaneous with her
reduction in pay and that the Respondent had knowledge of her protected activity. I find that the
Government has not shown sufficiently that the Respondent had animus towards Wayne because
of her concerted complaints about pornography. The record shows that the Respondent
considered that issue taken care of with respect to Nimtz. Likewise it was dealing on a technical
level with eliminating pornographic pop-ups from its computer system. I find that the record as a
whole does not support the conclusion that the Respondent had animus against Wayne for
complaining about pornography. The Respondent presented Moreland as its chief witness as to
why Wayne’s pay was reduced. Moreland did not exhibit animus towards Wayne when he urged
her not to quit her employment and to give him time to investigate her complaints. He did some
follow-up on Wayne’s issues including the pornography issue. Moreland also looked closely at
the Brandon operations, including Wayne’s pay and did not like what he saw. The record
supports Moreland’s assessment of the work in that the employees who subsequently took over
most of the tasks Wayne performed did the work in a total of 20-26 hours a month. I found
Moreland to be a credible witness who was convincing when he testified that he made the pay
reduction decision based on a pure business judgment that he was not getting good value by
paying Wayne $4.000 a month for the work she was then doing. I credit his testimony in this
regard and find that Wayne’s pornography complaint was not a reason her pay was reduced. I
find, therefore, that even assuming a presumption of animus could be demonstrated, that the
Respondent has met its burden of showing that Wayne’s pay would have been reduced regardless
of her protected concerted activity. Wright Line, supra. I conclude, therefore, that the Respondent
did not violate Section 8(a)(1) of the Act by reducing Wayne’s pay.

CONCLUSIONS OF LAW

1. The Respondent, Kids Automotive, Inc., Kids Financial Inc., Brandon Financial, Inc., a
single employer, is an employer engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.

2. The Respondent violated Section 8(a)(1) of the Act.

3. The foregoing unfair labor practices constitute unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.

4. The Respondent has not violated the Act except as herein specified.

On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended:3

Continued
3 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations,
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10
15
20
25
30
35
_________________________

ORDER

The Respondent, Kids Automotive, Inc., Kids Financial Inc., Brandon Financial, Inc., a
single employer, its officers, agents, successors, and assigns, shall

1. Cease and desist from:

(a) Interfering with, restraining and coercing employees for engaging in protected
concerted activity under the National Labor Relations Act.

(b) In any like or related manner interfering with, restraining, 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 at 1300 West Alameda
Denver, Colorado, copies of the attached notice marked "Appendix." 4 Copies of the notice, on
forms provided by the Regional Director for Region 27, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all 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 covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by the
Respondent at any time since June 23, 2003. Excel Container, Inc., 325 NLRB 17 (1997).

(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
the findings, conclusions, and recommend Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
4 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 NATIONAL LABOR RELATIONS
BOARD" shall read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD."
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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it
alleges violations of the Act not specifically found.

Dated: May 13, 2005
______________________________
Albert A. Metz
Administrative Law Judge

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JD(SF)-41-05
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 had found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT interfere with, restrain or coerce our employees for engaging in protected concerted
activity under the National Labor Relations Act.

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.

Kids Automotive, Inc., Kids Financial Inc., Brandon
Financial, Inc., a single employer
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.

600 17th Street, 7th Floor, North Tower, Denver, CO 80202-5433
(303) 844-3551, Hours: 8:30 a.m. to 5 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (303) 844-3554.