O'Connor Lincoln-Mercury

National Labor Relations Board - Board Decisions

Mar 25, 1975

217 N.L.R.B. 87 (N.L.R.B. 1975)

O'CONNOR LINCOLN-MERCURY 87
O'Connor Lincoln-Mercury and Laverne Berry. Case
31-CA-4617
rights were made by acknowledged supervisors of the Re-
spondent.
March 25, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On December 4, 1974, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm to rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders the
Respondent, O'Connor Lincoln-Mercury, Los An-
geles, California, its officers, agents, successors, and
assigns, shall take the action set forth in the said recom-
mended Order.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard by me on October 7, 1974, in Los Angeles, Cali-
fornia, based on a charge filed by Laverne Berry, an in-
dividual, and a complaint issued against O'Connor Lincoln-
Mercury (herein Respondent) on September 4, 1974, and
served on Respondent on the same date. The complaint al-
leges that Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (herein Act).
THE ISSUES
The Respondent admits having discharged Laverne Berry
on July 24, 1974.' This conflict requires the Administrative
Law Judge to discern, on the basis of evidence submitted, the
facts which caused or motivated the Respondent to discharge
Laverne Berry. It will also be necessary to ascertain whether
or not certain alleged statements tending to interfere with,
restrain, or coerce employees in violation of their Section 7
1 Hereinafter all dates shall be 1974 unless otherwise indicated.
I JURISDICTION
Respondent is now and at all material times has been a
corporation duly organized under and existing by virtue of
the laws of the State of California, with its office and principal
place of business located in Los Angeles, California, where it
is engaged in the retail sale and service of automobiles. In the
course and conduct of its business operations, Respondent
annually derives gross revenues in excess of $500,000 and
annually purchases and receives goods valued in excess of
$50,000 directly from suppliers outside the State of Cali-
fornia. On the basis of these admitted facts, I find the Re-
spondent to be an employer engaged in commerce and in an
industry affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
There is no particular union involved in this dispute. The
employees of Respondent working in the service department
were not, at the time of the discharge of Berry, represented
by any union (presumably this is still true). However, in the
late fall of 1973, there was a change made in the manner or
method of calculating the pay of the mechanics,2 and their
action sparked some concerted activity among the employees.
According to the service manager of Respondent, "There was
turmoil in the shop, dissension about the pay."
The employees had been paid 45 percent of the flat time
rate, or 45 percent of what the customer was charged. The
Ford Motor Company publishes a manual setting forth the
time each mechanical repair operation is supposed to take.
The customers were then charged $13 per hour of time re-
quired to perform the particular mechanical operation, in
accordance with the published manual . Work performed by
the Respondent's mechanics within or under the manufac-
turer's warranty was paid for by the manufacturer, The Ford
Motor Company, on the same basis. Thus, if the manual
specified that a "brake job" required 3 hours time, the em-
ployee was paid 45 percent of $39 (three times $13), or
$17.55. Another way of stating the same thing would have
been to say that the mechanics were paid $5.85 (45 percent
of $13) for each hour of work specified in the manual.
However, early in 1974, the Respondent increased its
charge to the customer from $13 per hour to $14 per hour.
At the same time, it sought and hoped to receive an increase
in the "warranty work" to $14 per hour.
At the time this change was occurring, the employees were
told that they were to show the hourly rate ($5.85) multiplied
by the time set forth in the manual instead of showing 45
percent of the dollars which were to be paid by the customer„
2 This group numbered approximately 15 to 20 employees and included
the brake and front-end mechanics, the tune-up mechanics, the air-condi-
tioning and electrical mechanics, the line mechanics, the body shop, and the
lubricating mechanics. We are not concerned here with the question of the
appropriate bargaining unit and no finding in that regard is intended
217 NLRB No. 23
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Needless to say, -the employees quickly learned that the
charge to the customer had been raised to $14 per hour, and
there followed turmoil and "dissension about the pay," (45
per cent of $14 would have meant a raise to $6.30 per hour).
B. The Testimony
Laverne Berry was employed as a front-end and brake
mechanic by Respondent from March 1, 1973, until his dis-
charge on July 24, 1974. According to Berry's testimony after
he learned of the increased charges to the customers without
a corresponding increase in rate pay to the employees, he
talked to most of the mechanics about the possibility of turn-
ing to a union for help.
Pat Laney, Berry's working partner, confirmed that em-
ployees were congregating in front of the work stalls and on
one occasion , he was given a verbal warning by Robert Kay,
the shop foreman, "that any discussion like this, where a
union was involved, was not the best thing to be doing."
In mid-March, Bob Kay and William Dodds, the service
managers, held conferences with each of the mechanics on an
individual basis and endeavored to explain the change in
"flagging time" instead of dollars. Berry testified that at the
meeting, Dodds explained to him that after the "warranty"
rate was raised to $14 an hour, that then "he could give raises
anywhere from five to fifty cents an hour." It was at this
meeting that Berry said Dodds told him "there would be no
more talk of union" and "that Jack O'Connor hated unions."
Paul Laney, a brother of Pat Laney, testified that he fre-
quently observed Berry at work, and in his opinion, Berry's
production was good. Pat Laney, who worked with Berry,
and who "pooled" earnings with him,' testified that Berry
was a good productive worker who did not waste time by
excessive coffeebreaks or "goofing" off. Blair Rafferty, a light
service mechanic, similarly testified that Berry appeared to
him to be a good productive worker who did not unduly
waste his time.
There is, of course, a direct conflict of testimony presented
by the Respondent. Both Kay and Dodds deny ever having
made any reference to a union in conversations with either
Berry or Laney, or, in fact, having knowledge of any union
talk by any of the employees.
William Stepp, lubrication mechanic, testified that his
work stall was reasonably close to Berry's, and he frequently
observed Berry not working.
Jose Bona, a lubrication mechanic, said Berry spent a great
deal of time talking and that he had never heard either Berry
or any representative from management mention a union.
Jimmie Yamaguchi, a tune-up mechanic, testified that he
and his working partner, Kie Kewada, were involved in a
meeting or conference with Bob Kay and William Dodds in
early March and that he did not at any time hear Kay or
Dodds say anything about a union . Yamaguchi testified that
to the best of his recollection the conversation only dealt with
the fact that Respondent was "going from $13 to $14 an
hour" and as soon as the factory approved the new warranty
rate that the employees would be raised to $6.30 an hour. In
3 Pat Laney and Laverne Berry were the only tow front-end and brake
mechanics at this point in time, and they worked as a team and shared
equally their combined earnings.
addition, Yamaguchi indicated that he had to go to the parts
department 10 or 15 times a day and in so doing, he walked
right past the work stall of Mr. Berry and that he frequently
observed him standing around and talking when he appeared
to have work to do. Mr. Yamaguchi appeared to have a minor
language comprehension problem, nevertheless, his tes-
timony regarding the conversation about a "union" may have
been the most candid of all the witnesses. The following
colloquy occurred:
JUDGE: Mr. Yamaguchi, do you understand the ques-
tion?
WITNESS: Yes.
JUDGE: Can you tell us who you heard [talking] about
the Union, please?
WITNESS: - I haven't heard anybody ` talking about
Union, but like I said, everybody dust talked about it. I
have no individual that I know. Even I talk about it. Like
I say, this is only hearsay.
Mr. Bob Eshoo, an air-conditioning and electrical service
mechanic, testified that Mr. Berry spent entirely too much
time standing around with his hands in his pockets and talk-
ing to other employees. Eshoo also testified that he had never
heard Mr. Dodds or Mr. Kay say anything concerning or
about a union.
Mr. William Cunningham, the service department dis-
patcher whose job was the assignment of work to the various
mechanics, testified that he could easily observe Mr. Berry
and that in his opinion, he spent entirely too much time with
his hands in his pockets and engaging in conversation with
other employees at times when there was work to be per-
formed. Mr. Cunningham testified that he had never heard
Mr. Kay or Mr. Dodds mention the word union. Cunning-
ham testified that he had, on occasions, questioned Mr. Pat
Laney as to whether Berry was earring his full load. Cunning-
ham said that Laney "didn't reply in any specific way" to his
question. Cunningham indicated that he had discussed Ber-
ry's poor work habits with Bob Kay, the shop foreman. Cun-
ningham testified that he had never spoken directly to Berry
concerning his lack of productivity, but that he had to Berry's
partner, Pat Laney, with the hope that Laney would encour-
age Berry to carry a greater portion of the work load.
Mr. Gene Franzen, the general manager of Respondent,
testified that the volume of business going through the shop
affects t e`°gross earnings of the mechanics on a fluctuating
basis. As a consequence, the mere fact that Mr. Berry earned
more money in August 1973 than his replacement earned in
August 1974 would not be indicative of the relative produc-
tivity of the two individuals involved. It was pointed out by
Mr. Franzen that the total dollar volume of business for the
service department in August 1974 was only $26,597 com-
pared with a dollar volume of $29,488 for August 1973.
Franzen also testified that it was difficult to state any average
earnings for the mechanics but that it varied between as little
as $800 a month to as much as perhaps $1800 per month.
Mr. Dodds testified that he had had a series of individual
conferences with the employees in early March in an effort
to straighten out some confusion as to the method in which
the mechanics' rate was being calculated, but denied that he
ever mentioned the Union to any of the employees or had ever
heard Mr. O'Connor say that he didn't like unions. Dodds
O'CONNOR LINCOLN-MERCURY 89
testified that while he made the final decision, it was the
collective opinion of Bob Kay and Bill Cunningham that
Berry should be discharged - for not producing up to his
capacity.
Analysis and Conclusions
This case poses a most difficult problem in discerning who
is telling the truth. The Respondent contends it discharged
Berry because he was "unable to produce enough work to our
standards"; that he was not producing up to capacity; that he
stood around with his hands in his pockets; and he talked too
much when there was work to do. Respondent's position is
supported not only by supervisors responsible for his dis-
charge, but also by some rank-and-file employees.
In contrast, however, Berry was never told, either orally or
in writing, that his production was inadequate. There was not
a scintilla of evidence that any complaints concerning his
performance was ever communicated to him. Berry 's work-
ing partner testified that Berry was a good workman who
carried his fair share of the load. Respondent 's witness, Cun-
ningham's testimony, confirmed Laney's favorable attitude
toward the productive capacity of Berry. Berry' s earnings
remained reasonable consistent between July 1973 and July
1974 (see G. C. Exh. 2(a) through (x)). It is recognized that
Berry and Laney "pooled" their earnings (providing a means
whereby one person could "carry" the other), thus, it is-dif-
ficult to believe that Laney would not have complained vigor-
ousIly if Berry had not been doing his fair share of the work
(especially when encouraged to do so, if one is to believe
Cunningham's testimony).
If, is apparent that some witnesses were less than candid
and frank in their testimony. Pat Laney, Paul Laney, and
Blair Rafferty had a great deal to lose if their testimony has
been falsified. In this particular work relationship, where the
employees who stood up to the management have no bargain-
ing representative to turn to for job protection, it is difficult
to imagine their testimony would have been contrived.
Moreover, I was impressed with the apparent integrity of
Laverne Berry and with his efforts to testify in a straightfor-
ward, candid manner , even though he may have been mis-
taken or inaccurate in one or two instances . In summary, I
am compelled to find on the strength of the testimony that
I believe to be most truthful under the careful scrutiny of
logic and the microscope of human behavior, that Respon-
dent's reason advanced for the discharge of Berry was a
pretext.
I find there was "turmoil and dissension" among the me-
chanics of Respondent in the first few months of 1974 because
of a change in the method of calculating the employees' pay;
that Berry was an active participant in the dissension ; that the
mechanics frequently voiced their concern, and the possibil-
ity of a union was discussed; that Pat Laney and Laverne
Berry were both warned by Respondent's supervisors that the
management was opposed to the Union and "such talk"
could lead to discharge; and that Laverne Berry was dis-
charged on July 24th of 1974 because Respondent believed he
was attempting to encourage his fellow workers to join a
union . A discharge motivated by an employee's union activi-
ties violates Section 8(a)(3) and (1) of the Act.4 The fact
that a legitimate reason may exist for the discharge does not
negate a violation of the Act if the discharge in actually for
a different and illegal reason.'
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of Respondent as set forth in section II,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce, among the several States and tends to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
IV THE REMEDY
Having found that Respondent has engaged in unfair labor
practices , I shall recommend that it cease and desist there-
from and that it take certain affirmative action designed to
effectuate the policies of the Act. Respondent having unlaw-
fully discharged employee Laverne Berry on July 24, 1974, I
shall recommend that Respondent offer him immediate and
full reinstatement to his former job, or, if that job no longer
exists, to a substantially equivalent position without prejudice
to his seniority and other rights and privileges, and to make
him whole for any loss of earnings he may have suffered by
reason of the discrimination against him by payment to him
a sum of money equal to that which he normally would have
earned from the aforesaid date of his termination to the date
of Respondent's offer of reinstatement , less any interim earn-
ings during such period. The backpay provided for herein
shall be computed on the basis of calender quarters in accord-
ance with the methods described in F W. Woolworth Com-
pany, 90 NLRB 289 (1950). Interest at the rate of 6 percent
per annum shall be added to such net backpay and shall be
computed in the manner set forth in Isis Plumbing and Heat-
ing Co., 138 NLRB 716 (1962).
Since the discriminatory discharge goes to the very heart
of the Act (N.LR.B. v. EntwistleMfg. Co., 120 F.2d 532, 536,
(C.A. 4)), it will be_ recommended that the Respondent be
ordered to cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1 Respondent, O'Connor Lincoln-Mercury, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent, through the words and conduct of its super-
visors has interfered with, coerced, and restrained its em-
ployees in the exercise of rights guaranteed in Section 7 of the
Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
by discharging and refusing to reinstate Laverne Berry be-
4 Local 374, International Brotherhood ofBoilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL-CIO [American Shipbuilding
Co.], 380 U.S 300, 312-313 (1965)
5 N.L.R.B. v. Superior Sales, Inc, 366 F.2d 229, 233 (C.A 8, 1966).
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of his protected and concerted activity on behalf of a
union.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER6
Respondent, O'Connor Lincoln-Mercury, its officers,
agents, successors,. and assigns, shall: -
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees in regard to their hire, tenure of employment, or other
terms and conditions of their employment in order to discour-
age membership in any labor organization.
(b) Interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act by
threatening employees with discriminatory treatment for re-
sorting to those rights which are guaranteed to all employees
by Section 7 of the Act.
(c) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary in order to effectuate the policies of the Act:
(a) Offer to Laverne Berry immediate and full reinstate-
ment to the position formerly held by him or, if that job no
longer exists, to a substantially equivalent position without
prejudice to his seniority and other rights and privileges.
(b) Make Laverne Berry whole for any loss of earnings he
may have suffered by reason of Respondent's unlawful dis-
crimination against him in the manner set forth in the section
of this Decision entitled "The Remedy."
- (c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all. other records necessary to
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
7 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment- of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board
analyze the amount of backpay due under the terms of this
recommended Order. -
(d) Post at its place of business in Los Angeles, California,
copies of the attached notice marked "Appendix."' Copies
of said notice on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's represen-
tative, shall be posted by it immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
-ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31 in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which participating parties had a chance
to give evidence, an Administrative Law Judge of the Na-
tional Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to post this
notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things except to
the extent that membership in a union may be re-
quired pursuant to a lawful union-security clause.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to their rights.
More specifically,
WE WILL NOT discharge or otherwise discriminate
against any employee for engaging in union activities.
WE WILL NOT threaten to discharge employees for en-
gaging in rights given to them by the Act.
WE WILL offer full reinstatement to Laverne Berry
with backpay plus 6-percent interest.
O'CONNOR LINCOLN-MERCURY