Birmingham Chrysler Plymouth Jeep

National Labor Relations Board - Board DecisionsSep 30, 1998

326 N.L.R.B. 1175 (N.L.R.B. 1998)

BIRMINGHAM CHRYSLER PLYMOUTH JEEP EAGLE 1175 Birmingham Chrysler Plymouth Jeep Eagle, Inc.1 and Thomas William Oberly. Case 7–CA–39582 September 30, 1998 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME On May 19, 1998, Administrative Law Judge Robert T. Wallace issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record2 in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and conclusions4 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted, and the complaint is dismissed. John S. Ferrer, Esq., for the General Counsel. John A. Entenman and William Thacker, Esqs. (Dykema Gossett), of Detroit, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE ROBERT T. WALLACE, Administrative Law Judge. This case was tried in Detroit, Michigan, on March 11 and 12, 1998. The charge was filed on March 11, 1997, 1 and the complaint issued on October 29. At issue is whether Respondent discharged an employee for engaging in protected concerted activity in violation of Section 8(a)(3) and (1) of the National Labor Relations Act. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the parties,2 I make the following. 1 The Respondent's name appears as amended at the hearing 2 We do not rely on any nonrecord material contained in the excep- tions or briefs. 3 The Charging Party 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 preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard 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. 4 Member Liebman would find that, even assuming arguendo that employee William Thomas Oberly engaged in protected concerted and union activity, and that the General Counsel proved such activity was a motivating factor in his discharge, nevertheless, the Respondent estab- lished that it would have discharged Oberly even in the absence of his protected concerted and union activity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 1 All dates are in 1997 unless otherwise indicated by context. 2 By stipulation dated April 10, 1998, the parties agree to and submit a tendered substitute for R. Exh. 8. The stipulation is accepted and the substitute is received in evidence. Respondent also offers an unopposed motion, dated April 15, 1998, to correct the transcript, to add tendered missing pages to G.C. Exh. 7 and R. Exh. 2 and to remove from the record two withdrawn exhibits (G.C. Exhs. 14 & 15). The motion is granted and received in evidence as R. Exh. 9. In addition, the General Counsel's brief (see fn. 5) contains a motion to correct the transcript. The motion is unopposed and is granted. FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, has its office and place of busi- ness in Troy, Michigan, where it sells and services new and used cars and derives over a million dollars annual revenues therefrom. It 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. II. ALLEGED UNFAIR LABOR PRACTICE William Oberly has been a used car salesman for Respondent since December 1994. Between April and September 1, 1996, Respondent made several changes in its pay plan, the effect of which was to in- crease the number of cars that had to be sold before sales per- sonnel began to be paid at bonus levels. Those changes pro- voked discontent, and Oberly on a number of occasions pre- sented complaints to management on their behalf.3 Receiving no satisfaction, Oberly set up and invited sales personnel to attend two after-hours meetings at which he urged them to sup- port representation by Local 283, International Brotherhood of Teamsters, AFL–CIO. For many years that Union has repre- sented Respondent's mechanics and service employees. Following those meetings the Union, on September 5, 1996, requested recognition from Respondent; and on the next day it filed a petition with the Board for a representation election. Beginning about the second week of September, Respondent held antiunion meetings during weekly sales meetings. Gener- ally, these were attended by Owner Richard Mealey and all supervisors, including General Sales Manager Gary Eisele and used car Manager Steve Miller. At a preelection hearing in late September, Oberly testified on behalf of the Union and sat at the union table with a Team- ster official. No other employee was present. A Board super- vised election was held on Friday, November 15, and Oberly served as an union observer. The Union lost six votes to seven. No unfair labor practice charges were filed in connection with the election and the result became final. The evidence amply demonstrates, and I find, that Respondent was well aware of Oberly's leadership role both in presenting employee concerns about wages and in supporting unionization. On the following Monday morning Oberly handed Miller a handwritten note and left the premises. The note stated: I Tom Oberly am taking a medical leave of absence Today . . . . I will have my doctor notify you of the medical reasons. On Monday, December 9 (after a 20-day absence), he re- turned to the facility, handed General Manager Glen Hojnacki a “return to work approval” signed by the Brighton Hospital's medical director, and resumed his job. The form did not con- tain, and he did not supply, any reason for his hospitalization. 3 On August 11 Oberly filed a wage complaint with the Wage and Hour Division of Michigan's Department of Consumer and Industry Services because, in his view, the dealership was “stealing money” from him. He admittedly filed the complaint on his own behalf. 326 NLRB No. 109 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176 Sales personnel at Respondent's dealership are given a “tar- get” of 12 car sales per month, new or used. From January through September 1996 Oberly sold an average of 11 cars per month. In October he sold seven and in November, prior to his leave of absence, he sold one and received oral counseling from Miller. In December he again sold only one car. In mid-month he was again orally admonished by Miller, and on January 3 Miller gave him a written warning containing a note that “12 CARS MUST BE SOLD IN JANUARY!”4 At the end of January Oberly had sold three cars.5 On Febru- ary 5 when he received his sales tally (washout) sheet6 reflect- ing that fact and showing him as owing the company $555 for weekly advances, he wrote in large letters on the bottom: I DISAGREE WITH HOW MUCH WE PAY FOR SERVICE WORK AND THIS $850.00 PAC7 WHICH IS RIDICULOUS AS FAR IS [SIC] THAT GOES THE WHOLE PAY PLAS [SIC] IS RIDICULOUS He then gave the sheet to Miller without oral comment. Having previously conferred with Eisele and obtained his approval, Miller called Oberly to his office on Monday, Febru- ary 10, and, with Eisele present, gave him a separation notice. Therein Miller, after citing the prior written warning, gave as reasons for the discharge lack of production and insubordina- tion arising from Oberly's written comment on the washout sheet. Miller explains that the comment was insubordinate be- cause the washout sheet was an inappropriate vehicle for regis- tering disagreement about “service work or anything else.” On reading the document Oberly commented “This is bull- shit,” and Eisele replied, “Tom, you know its not us.” Oberly left the premises after writing on in the space reserved for em- ployee comments: Richard Mealey is harassing me because of my un- ion activity, labor dispute8 and my disability of al- coholism. 4 On receiving the warning Oberly commented “This is bullshit.” Miller replied that he had to issue it because Owner Richard Mealey “was on his back.” 5 Oberly testified that he sold a fourth car in January but “gave the sale” to another salesperson so that the latter could make the bonus level. Assuming that occurred, the transaction was performed sub rosa, was intended to deceive the dealership, and in fact did so. 6 Pursuant to company practice sales personnel are required to re- view monthly washout sheets, note any errors, and sign and return it to supervisors. 7 “PAC” is a fixed amount the dealership routinely subtracts from the sale price of a car prior to determination of an employees commis- sion. 8 Oberly testified that the “labor dispute” was his filing the wage and hour complaint with the State of Michigan. He had sold four cars during the first 10 days of February. I find no violation cognizable under the Act. While Oberly's complaint on the washout sheet evinces con- cern about pay, it patently was not made in a representational capacity and hence is not protected. In this respect, viewing the comment as made in the context of his prior concerted/union activities is strained. Those activities appear on this record to have completely ceased 3 months earlier when the Union lost the election. Even assuming arguendo that it was concerted, I find that the primary and determinative reason for the discharge was the dramatic decline in his car sales. He went from selling an aver- age of 11 cars a month between January 1 and September 30 to selling 7 in October, 1 each in November and December, 3 in January, and another 4 by February 10 when he was dis- charged. There is no evidence of antiunion animus that might have tainted the discharge decision. In this regard, opposition to unionization is insufficient in itself to establish animus. Indeed, Respondent's mechanics and service employees have been rep- resented by a union for many years, apparently without prob- lems. The circumstance that Supervisors Miller and Eisele dis- claimed personal responsibility and intimated the decision was that of Owner Richard Mealey lacks significance. They appear simply to have using the age-old ploy of passing the buck to avoid jeopardizing past friendships. And even if Mealey was the moving force, as Owner he had more than a passing interest in weeding out low producers. Further, the decision appears not to have been discrimina- tory. Respondent has a high turnover in sales personnel and a history of discharging low producers, including another used car salesperson in September 1996 and a new car vendor on January 3. For the period November 1 to February 10, Oberly was by far the low producer of the three used car salesmen employed by Respondent, having sold only 9 cars as compared with 29 and 30, respectively, for the other two. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended9 ORDER The complaint is dismissed. 9 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses.