Hawthorne Mazda, Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1980

251 N.L.R.B. 313 (N.L.R.B. 1980)

HtAWTHORNE MALDA IC. . 1
Hawthorne Mazda, Inc. and Daniel A. Jaques. Case
31-CA-8946
August 19, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.I.O, AND
TRUES)AI E
On February 14, 1980, Administrative Law
Judge George Christensen issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief and
Respondent filed a brief in opposition to the Gen-
eral Counsel's exceptions.
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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent did not unlawfully interrogate employee
Daniel Jaques concerning his union activities and
sentiments. The Administrative Law Judge further
found that Respondent did not violate Section
8(a)(l)'of the Act by discharging Jaques on April
20, 1979. The General Counsel has excepted to
these findings. We agree with the Administrative
Law Judge, for the reasons stated by him, that Re-
spondent did not unlawfully nterrogate Jaques in
violation of Section 8(a)(1) of the Act. However,
for the reasons set forth below, we find merit in
the General Counsel's exceptions to the Adminis-
trative Law Judge's failure to find that Respondent
violated Section 8(a)(l) of the Act by discharging
Jaques.
The events leading up to this procedding are as
follows:
Daniel Jaques was one of six mechanics em-
ployed in Respondent's service department. Prior
to March 1978, the mechanics were paid at a com-
mission rate of 45 percent of the total labor
charges. Thereafter, Respondent instituted an "effi-
ciency pay program" under which mechanics were
paid on a sliding scale determined by the ratio of
the mechanic's billed labor hours to his total sched-
uled work hours.2 Under this system, the mechan-
ic's pay could range from a high of $7.90 per hour
to a low of $6.90 per hour, depending on the em-
I AWe ll*, re:jctl RceponrJerll'% motolln to t rike he (ilnerall Cou .llcIl' ,
cxccpli ons
w1', scnilor mlcchanic. , StJrnl\: Kino,hita lanld I errs Hei1i.. ' ,re I1no
affected h the n p sstern
251 NLRB No. 38
ployee's efficiency level.:' The net effect of the
new pay system was to tie the mechanic's rate of
pay to the level of service work.
Since the pay system's inception, Jaques had
voiced his opposition to that systemn on almost a
daily basis to Respondent's service manager, Phillip
Kapsimallis.4 Jaques' concerns about the new pay
system were shared by mechanics Darryl Stogryn
and James Mitchell who similarly expressed to
Kapsimallis their preference for a return to the
former commisssion system. Kapsimallis testified
that when Bob Keefer, Respondent's vice president
and general manager, walked through the ser ice
area, the mechanics would complain about the effi-
ciency system in voices loud enough that Keefer
could hear them.
Sometime around March 1979.' Jaques spoke
with Mitchell, Strogyn, and another mechanic,
John Delperdang, concerning pay. scheduling days
off,6 and the absence of a changing room. and se-
cured their authorization to act as their spokesman
in seeking to persuade Respondent to correct the
perceived problems in Respondent's working con-
ditions. Thereafter, Jaques spoke with Kapsimallis
about the possibility of having a service meeting to
discuss the pay and scheduling issues. Jaques made
it clear that Delperdang, Mitchell, and Strogyn
supported the holding of a meeting to discuss these
issues. Kapsimallis agreed to schedule the meeting,
to have Keefer attend, 7 and to make attendance
manadatory. The meeting was subsequently sched-
uled for April 19.8
On April 17, Jaques drafted the following peti-
tion for presentation to Keefer at the service meet-
ing:
We the mechanics of Hawthorne Mazda have
taken steps necessary to form a union in order
to have some voice in scheduling of days off
and our pay rate also due to lack of leadership
' Thus, If a mechanic orked tI 80)-pcrerit l fi ill, i 1%e .1- 5,ls
paid he total number of hour*, he rkcd during a 2- cck pcrlod at
Sh )90 per hotur If he rt rkt.l 1 t iX)-pcrcelt effie-lcni 5. I-e \ .i, paid i l
57 1)) hour
q In a JuliC 1978 mcciln t g if scrvi-c cmploce,, a lc e ,ls 0k1 i1 ill
schelhcr Ihe nimchanilcs snilttdl to1 CilltlInuc the ffiwicllc sslIcll 111
onl mechanics precntit crc Jaqucs, iefil 11,11 Kilmlo ELi Jquces ,n
the onlk Wtt .ag.allnsl contililatiil tf Ithe ssiei
All dares hrcinaftel arc in 1979. illcu oilherw sc illnlic.lltd
()ll: HBcmis and Killshlila scrc regularil glIC I rlida; sanll Satill-
dalss o1fT The other mcchilnic, fill that the ilft, she ll he r otaled
2 Jaqucs pecfiicall! requestled Kecfcr' prcec .c h i. e a It, did iot
think that Kapsitiali s, poe,,ced thel aithorit! rlnC. sls I Illitkc . lite
chalnges sutgit h the mnlchanics
8 AcC(c rdin g t( KalpilllllJh, tlt freqlrls i Ih I I lChe l t1.1 S' illt
plaillt cliceriliig p;s andil stnm (as iagail Jaquei , oI l no ole a a
Illelil r Il prcious Near as gr luld for contlliing the nc sytercm:
Ja;quc ,Wanlted I0 ilslure this time all the mchanrics cre prcscnl aInd
Noiniig it ii ol \aS i galt ilakell
FIAU'TfiRNF MAZDA, INC. 119
which appears on order 7-76 mercantile effective
date 10-18-76, section 13 A & B and 15 A+B+C
dealing with changing rooms and working tempera-
tures.
Signatures Date
I. Daniel Jaques 4-18-79
2. James Mitchell 4-19-79
3. Darryl D. Stongryn 4-19-79
4. John Delperdang 4-20-79
Between April 18 and the opening of the meeting' °
Jaques showed the petition to Kinoshita, Mitchell, and
Stongryn and solicited their signatures. Mitchell, Ston-
gryn, and Jaques signed the petition; Kinoshita refused.
Jaques was unable to contact Delperdang and made no
effort to solicit Bemis' support.
All the mechanics but Delperdang, Kapsimallis, Ed
Lampron (parts manager, and an admitted company su-
pervisor and agent), Beverly Johnson (assistant to Kapsi-
mallis who wrote up service work orders), Jeff (parts as-
sistant), and Mary (service department cashier) attended
the meeting. Keefer did not.
Immediately after the meeting opened Jaques asked
Kapsimallis, who chaired the meeting, if Keefer was
going to attend. Kapsimallis replied he was not going to
be there. Jaques commented that the meeting had no
point, because when he asked Kapsimallis for the meet-
ing in order to discuss changing the pay system and
other issues, Kapsimallis told him only Keefer could
change the pay system. The meeting nevertheless contin-
ued with discussion of shop practices, problems, cleanup,
and other issues. While Jaques refrained from presenting
the petition to Kapsimallis or discussing the pay
system, " he, nevertheless, used the term "we" in pre-
senting his, Delperdang's, Mitchell's, and Stongryn's po-
sition on the rotating shift issue and secured Kapsimallis'
agreement to take up that change with Keefer after Kap-
simallis learned all five mechanics present supported it. L2
Kapsimallis was not scheduled to work April 20 and
21 and planned to report the events which transpired at
the meeting to Keefer on his return on April 22.
The day after the meeting, April 20, Delperdang read
and signed the petition.
Encountering Keefer near the parts department the
same morning, Jaques asked him why he did not attend
the parts department meeting the previous evening.
Keefer replied he normally did not attend such meetings
and, in any event, some other matter arose which re-
quired his attention. Jaques said there were some prob-
lems he wanted to discuss with Keefer and asked if they
could meet during Jaques' lunch hour. Keefer told
Jaques to take up the problems with Kapsimallis' a and
went into his office.
'o Scheduled after completion of the April 19 ork shift, at 7 30 p m
i Because he expected to obtain Delperdang's signature the follol itg
day and wanled the main issue presented to Keefer, the only person ho
possessed the necessarN authoritl to take any action onll it
" Kapsimalhs estified hdie he had authority io grant that change he
did not .o inform the mechanics at the meeting
"a Keefer preferred to resol e any employee complailns or griesances
through his department heads ilhoul hi, having personal conlaclt ilh
the complainant or grievant
While Jaques was having a cup of coffee that after-
noon near the parts department he stopped Keefer as the
latter passed by and renewed his request for a meeting.
Keefer repeated his prior response and went into his
office. Jaques followed him, stating he had talked to
Kapsimallis and wanted to talk to Keefer, and he wanted
to talk to Keefer then and there. Jaques did not present
Keefer with the petition signed by the four mechanics at
any time during the ensuing discussion, which consumed
in excess of an hour, but he did complain the existing
pay system was unfair, particularly in that shift hours
during which there was no work in the shop for mechan-
ics to perform were utilized in calculating the ratio; con-
tended the former system of paying mechanics 45 per-
cent of the labor charge should be reinstituted; contend-
ed the existing fixed work shifts should be supplanted
with rotating shifts, stating the five mechanics at the pre-
vious evening's meeting voted for that change; and recit-
ed a number of other grievances. Jaques also was critical
of Kapsimallis, stating he was inexperienced and the
service department was run inefficiently. When Keefer
asked him if he was saying Kapsimallis was incompetent,
Jaques replied he was not so much saying Kapsimallis
was incompetent as that Keefer was incompetent in
having Kapsimallis as service department manager.
Jaques also criticized the way the sales department was
being run, stating that Young 4 was also incompetent;
that Keefer was incompetent and an idiot for continuing
him in that capacity and should replace Young with a
good sales manager to increase sales, Keefer should in-
crease advertising to bring in more business; and other
criticisms. Keefer at one point stepped from behind his
desk and asked Jaques if he could do his job better.
Jaques stepped behind the desk, stated he could, and
asked what he needed to sign to assume command. At
that point Young left his office, entered Keefer's office,
and remained there for the balance of the discussion.
Somewhere during the discussion Keefer showed
Jaques records displaying the earnings of the Company's
mechanics and compared them unfavorably with the
earnings of union-represented mechanics on the percent-
age pay system and asked Jaques if he favored union rep-
resentation and the union-negotiated pay system. Jaques
stated he could not discuss the Union on the clock.
Keefer replied he neither knew nor cared anything about
that. Jaques shut the door to Keefer's office and stated
he hated the Union and wanted no part of it. Also, some-
where during the discussion Keefer pointed out the
Company's steadily increasing overhead for rent, uni-
forms, supplies, and such and complaints from the fac-
tory over the Company's labor costs prior to the change
to the ratio system and stated those factors prevented a
return to a percentage labor charge figure exceeding 40-
42 percent. Keefer gave other explanations for not re-
turning to the former pay system, to be met mostly by
charges that he, Young, Kapsimallis, and others were
1I Referring to Htarry Young, the Compan', sales manager. an ad-
mitlled super isor and ageit oif the Companl acting on its behalf
HAWTHORNE MAZDA, INC 3113
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
simply incompetent, idiots, and stupid.' 5 Tiring of the
vituperation, Keefer brought it to a close by stating in
view of Jaques' attitude, he was terminated. Asked why,
Keefer replied, "insubordination." Then Jaques asked if
he should finish the job he was working on, Keefer told
him "no, just leave." When Jaques asked if he had to
take out his tools that evening Keefer told him he would
give him until the following morning. When Jaques
asked Keefer what to state to the unemployment office
concerning his termination Keefer told him he had a
choice of quit or discharge. When Jaques asked if the
reason for the latter should be listed as insubordination
Keefer replied affirmatively.' 6
When Jaques came in to pick up his tools, turn in his
uniforms, and pick up his final check the next morning
he sought out Keefer in his office, stated that he was not
going to exercise the quit option, that he had been to the
Labor Board, was scheduled to return, and knew what
to do, but would forget about going back to the Board if
Keefer made the changes he wanted. Keefer said he
would consider them. Jaques filed his original charge
with the Regional Office 2 days later.
B. Analysis and Conclusions
On the basis of the foregoing findings of fact, I find
and conclude that Keefer discharged Jaques because of
the latter's disrespectful attitude towards company man-
agement and intemperate attacks on company officials,
policies, and practices rather than for engaging in pro-
tected, concerted activities.
While Jaques did seek out Keefer and expressed the
mechanics' 7 dissatisfaction with the current pay and
work assignment systems, he never presented Keefer
with the petition; never told Keefer he was acting as the
I Keefer and Young lost count of how many times Jaques so charac-
terized Keefer; they agreed Young and Kapsimallis were so called only
five or six times
6 The foregoing findings are based on the testimony of Keefer ad
Young as partially corroborated by Jaques Jaques' testimony that he was
invited into Keefer's office, asked if he was trying to bring a union in as
he had at his previous employer Budget Rent-A-Car, and asked what was
going on is nriot credited. Rather, based on demeanor and my impression
of sincerity, I credit Keefer's testimony that he did not learn of Jaques'
previous success in securing financial settlement from Budget Rent-A-
Car, as a result of filing a charge with the NLRB alleging his discharge
by that employer resulted from his alleged union activities, until after the
current charge was filed against the Compaly. I credit Keefer and
Young's testimony Jaques followed Keefer into the latter's office, the
latter did nlot ask Jaques what was going on but rather heard him out on
his complaints, objections, and charges and replied thereto.
"7 I find, as Jaques testified, he used the term "we" in stating the dis-
satisfaction of four of the six mechanics with the current pay and swork
shift assignment systems and other complaints. While Keefer testified Jac-
ques used the personal pronoun "we" in stating his complaints, in his pre-
trial affidavit he corroborated Jaques.
duly authorized representative of other mechanics in pre-
senting proposals for change in those systems or any
other working conditions; never made it clear he was
doing other than persisting in presenting personal views
(Keefer reasonably interpreted "we" as just the figure of
speech Jaques was using) despite Keefer's express desire
he bring his complaints through Kapsimallis; and went
far beyond expression of any complaints or grievances in
attacking the competence and integrity of all levels of
management, including a direct attack on Keefer himself,
in highly derogatory terms.
I, therefore, shall recommend dismissal of those por-
tions of the complaint alleging the Company discharged
Jaques because he engaged in protected, concerted activ-
ities and thereby violated the Act.
While I have entered findings that Keefer, at one point
during the discussion, asked Jaques if he favored union
representation, I find and conclude in the context the
question was asked, as a comparison between incomes of
union represented and company mechanics, Keefer was
not so much seeking information concerning Jaques'
union sentiments as he was addressing a rhetorical ques-
tion, that being he would prefer the higher potential and
actual incomes the top company mechanics were receiv-
ing under the ratio pay system at the Company or the
lower ones union-represented mechanics were earning
under their percentage of labor charge pay system? ,
therefore, find and conclude by the question Keefer did
not violate the Act.
In view of the foregoing, I shall recommend dismissal
of the entire complaint.
CONCI.USIONS OF LAW
1. At times pertinent the Company was an employer
engaged in commerce in a business affecting commerce
within the meaning of Section 2 of the Act.
2. At times pertinent Keefer, Kapsimallis, and Young
were supervisors and agents of the Company acting on
its behalf within the meaning of Section 2 of the Act.
3. The Company did not interrogate Jaques regarding
his union activities, sympathies, and desires in a manner
violative of the Act during the April 20 discussion be-
tween Keefer and Jaques.
4. The Company did not discharge Jaques on April 20
because he engaged in concerted activities protected
under the Act.
5. The Company did not commit unfair labor practices
violative of the Act in the course of the April 20 discus-
sion or by Jaques' April 20 discharge.
[Recommended Order for dismissal omitted from pub-
lication.]