T. A. Byrne Chevrolet

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 282 (N.L.R.B. 1991)

282
303 NLRB No. 37
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
Under the circumstances of this case ‘‘the clear preponderance of all the
relevant evidence’’ is insufficient to establish that the credibility resolutions
of the judge are incorrect. We recognize, as the Respondent points out, that
there is evidence in the record that calls into question the credibility of Charg-
ing Party John Myrick. On the other hand, Supervisor Tom Kenna’s trial testi-
mony, which the Respondent would have the Board credit, conflicted on key
points with his earlier statements in his sworn affidavit. We also note that the
judge relied on the demeanor of the witnesses. Thus, we will not overrule the
judge’s crediting of Myrick where the testimony of Myrick and Kenna con-
flict.
2 Kenna, on the other hand, testified that he had told Myrick on the morning
of October 7 that it was too soon to determine if the work was CPL work
or warranty work. The judge credited Myrick rather than Kenna on this point
and, as noted, we find no reason to disturb the judge’s credibility resolutions.
T. A. Byrne Chevrolet, Inc. and John Myrick. Case
2–CA–23439
May 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 19, 1989, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief. On
July 11, 1990, the Board remanded the case to the
judge to make additional findings of fact. On July 31,
1990, the judge issued the attached additional findings
of fact. The Respondent filed supplemental exceptions
to the additional findings and a supporting 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
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The Respondent is an automobile dealership em-
ploying union-represented mechanics. The collective-
bargaining agreement incorporates an incentive pro-
gram by reference. Under the incentive program, the
mechanics generally are paid more for work which is
paid for by the customers (CPL work) than for work
done under warranty. On the morning of October 7,
1988, Charging Party John Myrick was assigned an
ambulance-van to repair. Myrick credibly testified that
when he asked his supervisor, Tom Kenna, if he would
be paid CPL time or warranty time for the job, Kenna
replied that Myrick would be paid warranty time.2
Myrick testified that, subsequent to his conversation
with Kenna and while he was at lunch, he called Gen-
eral Motors Warranty Information and also General
Motors Zone Office to inquire whether the repair work
was warranty work.
The judge found that Myrick’s calls to General Mo-
tors were in furtherance of an attempt to enforce spe-
cific provisions of the collective-bargaining agreement
and therefore constituted protected concerted activity.
The judge further found that the Respondent dis-
charged Myrick because of his calls to General Motors
and thus that the discharge violated Section 8(a)(1) of
the Act. We agree.
To be protected activity, Myrick’s telephone calls to
General Motors had to relate to an ongoing labor dis-
pute. See Emarco, Inc., 284 NLRB 832 (1987). Here,
the Respondent, through Kenna, informed Myrick,
after Myrick had asked whether he would receive CPL
or warranty pay, that Myrick would receive warranty
pay for the ambulance repair job. At that juncture,
there was a legitimate question over what rate Myrick
should be paid under the contract’s incentive program,
and Myrick’s efforts were directed thereafter toward
enforcing a contract right—i.e., the right to be paid at
a CPL rate for CPL work. Thus, at least at that point,
a labor dispute had arisen. Myrick’s telephone calls
were taken in furtherance of his position in that dispute
and thus constituted concerted activity as defined in
NLRB v. City Disposal Systems, 465 U.S. 822 (1984).
Accordingly, we agree with the judge that, as Myrick
was discharged for engaging in this protected con-
certed activity, the discharge violated Section 8(a)(1)
of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, T. A. Byrne Chevrolet,
Inc., Mt. Kisco, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
James M. Mills, Esq., for the General Counsel
Perry S. Heidecker, Esq. and Robert F. Milman Esq. (Mar-
shall M. Miller Associates, Inc.), for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York City on October 2 and 3, 1989. The
charge was filed on February 13, 1989, and the complaint
was issued on March 30, 1989. In substance, the complaint
alleges that the Respondent discharged John Myrick because
he called General Motors regarding matters relating to pay
rates.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
283T. A. BYRNE CHEVROLET
1 Although not particularly relevant, it is noted that in certain circumstances
(for example where a job is particularly difficult) the service manager may au-
thorize additional time to perform the work over and above the time allowed
by either manual.
FINDINGS OF FACT
I. JURISDICTION
The Respondent 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. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent operates an automobile dealership in Mt.
Kisco, New York, where it sells new and used vehicles. As
part of its operation it employs a crew of mechanics who,
at the time of these events, were supervised by Tom Kenna,
the service manager.
The auto technicians employed by the Company are rep-
resented for collective-bargaining purposes by Automobile
Lodge 447, International Association of Machinists and
Aerospace Workers. The most recent contract between the
Union and the Company runs from June 1, 1988, to June 1,
1991. The Union’s shop steward is Robert Martorano.
John Myrick was hired by the Company in May 1986 after
having been discharged by two previous employers. He was
hired as an ‘‘AA’’ mechanic, which under the collective-bar-
gaining agreement is the highest mechanic classification. The
contractual job description is as follows:
‘‘AA’’Mechanics—Must be able to perform all
phases of mechanical repair work from bumper-bumper
in factory book time, and be capable of being a team
leader if required.
Pursuant to the collective-bargaining agreement, the me-
chanics are guaranteed a minimum of pay based on 35 hours
per week assuming that they work 5 full days. In addition
there is an incentive program incorporated by reference in
the collective-bargaining agreement (at appendix A).
The incentive system which appears to be widespread in
the industry works as follows: Service department work is
generally divided into three categories. First, there is war-
ranty work which is work done under General Motors war-
ranty and which is paid for by General Motors. Second, there
is customer paid work (CPL), which is work paid for by the
customer because the vehicle or a part thereof, is no longer
under warranty. Third, is internal work which is paid for by
the dealership. A common example of internal work would
be a comeback situation where the mechanic did not do a
proper fix in the first place.
When work done by a mechanic is warranty work the me-
chanic gets paid his hourly wage rate times the number of
hours allowed for the job by the General Motors Manual
(GM manual). That is, if the replacement of a spark plug is
defined as requiring 10 minutes by the GM manual, the me-
chanic will get paid his hourly wage rate times 1/6th hour
irrespective of how long he actually takes to do the work.
On the other hand, when customer paid work is done, the
mechanic will be paid his hourly wage rate multiplied by the
time allowed under the Chilton Manual. The difference is
that although the Chilton Manual describes every mechanical
operation in much the same manner as the GM manual, the
Chilton Manual, as a general rule allows more time for the
same operations as the GM manual. Accordingly, as a me-
chanic will be paid for a CPL job in accordance with the
Chilton Manual, the chances are that he will earn more
money for the same type of work than if the job was under
warranty. In both cases, a good mechanic who can work fast,
will ‘‘beat the book’’ and earn more money than the me-
chanic who only can meet the book.1
Myrick’s employment history with the Respondent was not
a happy one. Nevertheless, because of a short supply of me-
chanics and because he was a hard worker, he was retained
by the Company despite his many shortcomings.
One of Myrick’s chronic problems throughout his employ-
ment was ‘‘come-backs’’ which, as noted above, are situa-
tions where the unhappy customer brings back his car after
it allegedly has been fixed.
In September 1988 Myrick was involved in a scheme
where he attempted to turn in old horns from a used car
claiming that they were the horns from a new automobile
that he had recently purchased. This was, in effect, an at-
tempt to defraud General Motors by making a false warranty
claim. Kenna told Myrick that he was trying to get himself
fired.
Also in September 1988 Myrick sold an old car to another
employee for a fixed price but also on condition that he
would repair the engine if she paid for the parts. When he
discovered that the problem was more extensive than he
thought, Myrick wanted to fix the engine in a superficial way
so he could palm off a defective car on the buyer. When the
other employee wanted her money back, Myrick delayed and
a serious dispute erupted in the shop between the two em-
ployees. When Kenna told Myrick that he should return the
money, Myrick responded that Kenna should mind his own
business and he filed a grievance claiming that Kenna was
interfering. (The Union did not pursue the grievance.)
The events that precipitated Myrick’s discharge all oc-
curred on Friday, October 7, 1988. On that morning, dis-
patcher Zeitler assigned Myrick the job of repairing an am-
bulance van which had a diesel engine that although bought
from the Respondent had been installed by someone else.
Myrick was told that the engine had a knock and his job was
to diagnose the problem and make the repairs.
According to Myrick he proceeded with the job, first by
letting the engine run for about 30 minutes so that he could
diagnose where the knock was located after the engine was
warmed up. He states that he then took steps to remove the
engine by removing the bumper, the grille, the headlights,
and other bits of machinery.
At this point, according to Myrick he went to lunch with
another employee and discussed whether the job he was
doing was warranty work or customer paid work. The issue
here was whether the engine was covered by the General
Motors warranty because although purchased new at Re-
spondent, it had been installed by someone else. Myrick
states that after lunch he called a branch office of General
Motors, described his situation, and asked for an opinion as
to whether the job he was doing was warranty work. Myrick
was told, however, that this was something that was between
him, the dealership, and the union.
When Myrick returned from lunch he first went into the
dispatch office where he attempted to look in the warranty
manual (which is on microfiche), to find out how many
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hours were allowed for the work he was doing. When Kenna
found him in the office, he asked Myrick if he had called
the General Motors branch office. According to Myrick, he
at first denied making such a call but admitted it after being
pressed. Myrick states that when he did admit making the
call, Kenna told him that he was fired.
According to Myrick there then ensued a conversation in
Kenna’s office that was attended by Zietler and Robert
Martorano, the shop steward. At this time, according to
Myrick, Kenna repeated his discharge decision and told
Martorano that Myrick had called the branch office.
The Respondent asserts that when the van was initially as-
signed to Myrick the exact nature of the problem was not
known. It concedes that it therefore would not have been
possible at this stage to determine whether the work would
be CPL work or warranty work. This is because if the prob-
lem emanated from the engine itself it would be warranty
work, but if the problem arose because of the way the engine
was installed it would be CPL work.
In any event, Zietler testified that when he first assigned
the job, Myrick said that he did not want to do this job.
Zietler states that he reported this to Kenna who said that he
would take care of the situation. According to Kenna, he
spoke to Myrick and ordered him to proceed with the job by
first taking off the oil pan in order to diagnose the problem.
Kenna states that at this point, Myrick stated his opinion that
it was a CPL job. He states that he told Myrick that until
the problem was diagnosed, it was too early to tell whether
the work was CPL work or warranty work.
According to Kenna, Myrick said that he wanted to take
the engine out rather than pull down the oil pan. Kenna
states that Myrick said, ‘‘Pretend I pulled the pan out and
we’ll just [go] ahead a pull the engine out.’’ The import of
this, according to Kenna, is that Myrick wanted to skip the
procedure of pulling down the oil pan, which is necessary in
order to properly diagnose where the knock was coming
from, and go directly to the next step which might entail re-
moving the engine if the first step indicated that this would
be appropriate. Thus, according to Kenna, what Myrick was
proposing was to skip an essential procedure required by the
General Motors manual and get paid for it.
Kenna testified that he noticed Myrick in the office at
10:30 or 11 a.m. looking in the Chilton Manual. He states
that when he asked him what he was doing, Myrick stated
that he wanted to see how many hours were allowed for the
job under this manual. Kenna states that he told Myrick to
get back to work.
According to Kenna at about 11:45 a.m. as he was distrib-
uting paychecks he saw that Myrick was not in his bay and
that very little work had been done on the ambulance. He
states that he saw that the oil pan had not been pulled down
and that the engine grill and bumper were off. According to
Kenna, he estimated that although the job had been assigned
to Myrick 3 hours before, there was only about 30 minutes
worth of work done so far. Kenna testified that when he saw
this he decided at this point to discharge Myrick.
Kenna conceded that he received a phone call from the
General Motors branch office regarding Myrick’s phone call
to them. He also acknowledged that he was upset by the call
as it made the Company look foolish. It is also clear to me
that the very first thing Kenna did when he saw Myrick after
lunch was to confront him about the phone call to the branch
office.
Two key points in Kenna’s testimony were that (1) Myrick
had refused to obey a direct order by not pulling down the
oil pan; and (2) that he (Kenna) made the decision to dis-
charge Myrick before lunch and therefore before Myrick
made his phone call to General Motor’s branch office. Un-
fortunately for the Respondent, Kenna made prior statements
which were inconsistent with his testimony.
In a pretrial affidavit given by Kenna during the investiga-
tion of this case he stated inter alia:
21. On or about October 7, there was an incident in
which Myrick had done only about thirty minutes of
work on an engine in an entire morning. He called
Chevrolet to inquire about ho he would get paid for the
job—either warranty time or ‘‘Chilton’’ time.
. . . .
23. Up to the time the meeting began, I hadn’t
planned on discharging Myrick. I personally told
Myrick; Bob Martorano, the shop steward; and Tim
Zeitler, the shop supervisor, to come to my office. I
asked Myrick if he had contacted the branch office. He
denied it. I asked him again; he denied it. I told him
I knew it was him. He admitted calling and said he did
it because he wanted to know why he was getting paid
warranty time on a CPL . . . job. I told him it wasn’t
CPL time, but warranty work. (This was the first time
he questioned how he would get paid for the job, but
he questioned it to such an extent that he did virtually
no work on the job for the entire morning). I told him
it wasn’t his concern whether it was warranty or CPL
work, but the proper procedure would have been for
him to do the work first and then discuss the matter of
pay rate with me or a shop steward. Martorano then
said that I was right, Myrick should have done the job,
and if he wasn’t paid enough, we could have sat down
and discussed it . . . I told him that he’s caused too
many problems in the last couple of weeks with come-
backs and problems where he didn’t want to do the jobs
for service advisors, trying to get parts from the part
department (referring to incident with the horn), and
over the past six or seven months I had been bringing
him into my office to discuss his work habits. I told
him that we just couldn’t continue. I dismissed him.
Martorano said to Myrick that he wished he would have
come to him first instead of going to the branch office.
Neither Myrick nor the Union ever claimed that I dis-
charged Myrick because he sought the assistance of the
Union. In fact, I was the one who called Martorano to
the meeting because I wanted to make sure he heard the
entire case. Martorano asked if we could discuss the
matter. I refused, saying that Myrick had caused me
more problems in the last few months than all the other
employees combined. . . . [Emphasis added.]
In a response to a grievance filed by Myrick, Kenna wrote
on October 12, 1988:
On Friday morning John told me there was a noise
in the engine. I told him to determine where the noise
was coming from. He said the noise was coming from
the crankshaft or bearings. I suggested he either take
285T. A. BYRNE CHEVROLET
2 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 objec-
tions to them shall be deemed waived for all purposes.
the pan off or pull the engine. A lengthy discussion fol-
lowed in which John said he should get paid twice for
doing this job. John did not want to do this work. At
9:30 AM. I told John to pull the engine and stop mess-
ing around. At approximately 12:30 PM I got a call
from Chevrolet Branch Office . . . stating that one of
my technicians had called . . . regarding an ambulance
that was in our shop . . . wanting to know if this was
covered under warranty. The caller also wanted Chev-
rolet to guarantee that Tom Kenna would pay him for
the job as he did not think this engine was covered
under warranty. He also figured that he still should be
paid Chilton time for doing this job. Chevrolet Motor
Division told me that this was the first time they ever
had a call regarding a labor dispute between a techni-
cian and a dealer. I asked John if he called the Branch.
He denied it . . . I told him I had proof that he called
the Branch. It was then he admitted it. I told him to
close the Chilton book and come to my office with the
Shop Steward and my Shop Supervisor. I explained the
whole situation . . . Bob Martorano told John Myrick
he had no business calling the Branch. He should have
done the job and got paid for the time and then if he
was not satisfied with the allotted time, he should have
gone to Tom or himself and pleaded his case. I told
John and Bob, by calling the Branch, he made TAB
look very foolish as we are a union shop and there is
no need to get Chevrolet . . . involved in our labor dis-
putes. I dismissed John as I couldn’t tolerate this type
of insubordination and mistrust. As stated before, I told
John to remove engine at 9:30 AM. I dismissed him at
1:00 PM. He had only done about 30 minutes work on
the ambulance in that time. . . . [Emphasis added.]
III. ANALYSIS
While Myrick may have had a lot of problems while
working at the Respondent, it is clear to me that but for the
events of October 7, 1988, he would not have been dis-
charged. Moreover, I am convinced that had it not been for
the phone call he made to General Motor’s branch office, he
would have remained employed. Thus, notwithstanding
Kenna’s testimony elsewhere, he stated in his pretrial affi-
davit that he had not decided to discharge Myrick until the
meeting that was held after lunch and which was after he had
learned of Myrick’s telephone call. Further, the whole tenor
of his prior statements indicates to me that the principal rea-
son for discharging Myrick was because of the call and not
because Myrick had not pulled the oil pan or had done only
30 minutes of work on the ambulance that morning.
An employee, even if acting alone, who attempts to en-
force provisions contained in a collective-bargaining agree-
ment is engaged in protected concerted activity. The theory
behind this is that even if acting alone in a particular case,
an employee’s attempt to enforce a union contract is in fur-
therance of the concerted activity which involved the making
of the contract in the first place. See NLRB v. City Disposal
Systems, 465 U.S. 822 (1984); Interboro Contractors, 157
NLRB 1295 (1967), enfd. 388 F.2d 495 (2d Cir. 1967).
Because the ambulance had an new engine which had been
installed outside the shop, this raised a legitimate question as
to whether Myrick’s work on the engine was going to be
considered warranty work or customer paid work. Because
this therefore determined the number of hours that Myrick
would be credited with, it therefore directly determined the
amount of money he would be paid for the job under the
Union contract’s incentive plan. Accordingly, it seems to me
that Myrick’s call to the General Motors branch office during
his lunch hour was in relation to and in furtherance of his
attempt to enforce specific provisions of the collective-bar-
gaining agreement. As such it is my opinion that he was en-
gaged in protected concerted activity as defined by Section
7 of the Act. Since I have concluded that the Respondent’s
principal reason for discharging Myrick was because of this
protected activity, I shall conclude that it violated Section
8(a)(1) of the Act.
CONCLUSION OF LAW
By discharging John Myrick because he attempted to en-
force provisions of the collective-bargaining agreement with
the Union, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950). plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, T. A. Byrne Chevrolet, Inc., Mt. Kisco,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting attempting to enforce provisions of
the collective-bargaining agreement with Automobile Lodge
447, International Association of Machinists and Aerospace
Workers.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer John Myrick immediate and full reinstatement to
his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
1 In a grievance filed on October 7, 1988, right after his discharge, Myrick
stated, inter alia, that Kenna told him that he was going to be paid at the war-
rant rate.
2 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 objec-
tions to them shall be deemed waived for all purposes.
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the John Myrick in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Mt. Kisco, New York, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
2 after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for attempting to enforce provisions of our collec-
tive-bargaining agreement with Automobile Lodge 447, Inter-
national Association of Machinists and Aerospace Workers.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer John Myrick immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL notify John Myrick that we have removed from
our files any reference to his discharge and that the discharge
will not be used against him in any way.
T. A. BYRNE CHEVROLET, INC.
James M. Mills, Esq., for the General Counsel.
Perry S. Heidecker, Esq. and Robert F. Milman, Esq. (Mar-
shall M. Miller Associates, Inc.), for the Respondent.
ADDITIONAL FINDINGS OF FACT
On July 11, 1990, the Board remanded this case to me
with directions to make additional findings of fact. Specifi-
cally, I was directed to resolve whether on October 7, 1988,
the Respondent’s service manager, Tom Kenna, told Charg-
ing Party John Myrick that he would be paid for a particular
repair job at the warranty rate or at the customer paid work
rate (CPL).
John Myrick testified that after receiving the job assign-
ment from Tim Zeitler, he asked Kenna at what rate he was
going to be paid for the job. He states that Kenna told him
that he was going to be paid at the warranty rate (i.e., at the
lower rate), and to shut his mouth.1 Consistent with this was
the testimony of shop steward Robert Martorano, who stated
that on the morning of October 7, Myrick complained to him
that he was not being paid properly for the job.
Kenna on the other hand testified that when he confronted
Myrick after being told by Zietler that Myrick did not want
to do the job, Myrick said that it was CPL work, whereupon
he told Myrick that the determination as to whether it was
a warranty or CPL job could not be made until after a proper
diagnosis of the problem was made. Thus, according to
Kenna he did not tell Myrick that the work was to be done
at the warranty rate because he did not know at that time
what rate was applicable.
Based on the record as a whole including demeanor con-
siderations, I credit Myrick. Firstly, his assertion that he was
told by Kenna that it was to be a warranty job is consistent
with the testimony of the shop steward and is consistent with
the grievance Myrick filed on the some date. Secondly, there
is no dispute as to the fact that Myrick called General Mo-
tors to find out if such work should be considered warranty
work or not. It seems unlikely that Myrick would have called
up General Motors to find out the answer to a question un-
less there was a real dispute to complain about. Thirdly, I
have noted in my previous decision, the substantial inconsist-
encies between Kenna’s testimony and his prior inconsistent
statements made in relation to Myrick’s discharge.
Therefore, having reexamined the record in this matter, I
conclude that on the morning of October 7, 1988, Myrick
was told by Kenna that he was to be paid according to the
warranty rate for the ambulance engine repair job.2