Rinke Pontiac Co.

National Labor Relations Board - Board Decisions

Jan 17, 1975

216 N.L.R.B. 239 (N.L.R.B. 1975)

RINKE PONTIAC CO. 239
Rinke Pontiac Co. and Stephen Terpevich . Case 7-
CA-11037
January 17, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
Terpevich because of his protected concerted activities. At
the close of the hearing, the parties waived oral argument
but thereafter filed briefs in support of their respective
positions.
Upon the entire record,3 and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
On September 30, 1974, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Rinke Pontiac Co.,
Warren, Michigan , its officers , agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
i Respondent's request for oral argument is hereby denied, as the record
and the briefs adequately present the issues and positions of the parties.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all parties represented, was heard on July 23 and
24, 1974, in Detroit, Michigan , on the complaint of the
General Counsel issued on May 22, 1974,1 and the answer
of Rinke Pontiac Co., herein called the Respondent or
Company . In issue is the question whether the Respondent,
in violation of Section 8(axl) of the National Labor
Relations Act, as amended ,2 discharged employee Stephen
i The complaint is based on a charge filed by Stephen Terpevich on
March 28, 1974, a copy of which was duly served on the Respondent by
registered mail the next day.
2 Sec. 8(aXI) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain , or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent , Sec. 7 provides that
"[e ]mployees shall have the right to self-organization , to form , join, or assist
labor organizations , to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection .... "
3 No opposition having been received, the General Counsel's motion to
216 NLRB No. 49
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation, has a Pontiac
automobile dealership in Warren, Michigan, where it is
engaged in the business of selling and servicing new and
used automobiles. Its annual gross revenue from these
operations exceeds $500,000. It also annually purchases
automobiles and parts valued in excess of $50,000 which
are shipped directly to its Warren place of business from
points located outside Michigan.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Terpevich's employment history; the events
preceding his discharge
In 1973,4 during which year the events herein occurred,
the Respondent employed some 10 new-car and four used-
car salesmen. One of the used-car salesmen and the subject
of this proceeding was Stephen Terpevich who was
summarily discharged on October 26 under the circum-
stances related below after 5 years of employment with the
Respondent. Admittedly, Terpevich was the Company's
top and most productive salesman , selling more cars than
the other salesmen, earning more commissions than any of
them, and winning various awards for his sales accomplish-
ments .5 In addition, he sold more credit life insurances to
customers than did the other salesmen for which he also
received commissions . About 2 weeks before Terpevich's
brother, Al, resigned from his job with the Respondent as
used-car sales manager on May 1, Terpevich was inter-
viewed for this position. According to Terpevich, he was
not interested in the manager's job unless he was paid a
higher salary than that offered.
On August 1, the Respondent instituted a new plan for
the sale of credit insurance to car purchasers. Unlike the
prior plan which provided only for life insurance for the
correct the transcript of testimony is hereby granted and the transcript is
accordingly corrected in the indicated respects , as set forth in Appendix B
attached hereto . [Appendix B omitted from publication.]
4 Unless otherwise indicated , all dates refer to 1973.
5 It appears that between May I and his discharge on October 26, there
was a drop in the number of his car sales and amount of earnings . Terpevich
attributed this situation to market conditions and sickness . The productive-
ness of other salesmen similarly suffered during this period.
6 Such insurance is usually sold to customers who finance their
automobile purchases in order to provide for the repayment of the
indebtedness in case of their death.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repayment of the indebtedness in case of death, the new
one offers , not only this type of insurance , but also health
and accident insurance for the repayment of installments
of the debt in case such contingencies arise . Coverage for
this insurance entails a much higher premium cost to the
customers than did the insurance offered under the former
plan. The new insurance is part of a complete program for
which the Respondent contracted with American Way
Service Corporation . Included in the program are provi-
sions for the promotion and the sale of the insurance. This
is achieved through an incentive system of compensating
salesmen for their successful efforts in selling the insurance
by crediting them with points which are convertible into
merchandise at wholesale prices or less .7 The salesmen's
compensation for selling this insurance is based on a
sliding scale designed to motivate them to accomplish
certain minimum standards of performance and to give
them bonus compensation if they exceed those minimum
standards . By contrast , the former plan prescribed a
straight commission of 10 percent of the insurance
premium sold to customers.
Concerned over the complexity of the new program and
lacking knowledge or sufficient information as to whether
this program would be more beneficial to them than the
supplanted plan, the salesmen held frequent meetings
among themselves on the Respondent 's premises . In these
discussions , the salesmen raised questions pertaining to the
method of compensation , particularly after they had
received their first report of their insurance earnings 1
month after the plan went into effect. They also voiced the
need for meeting with management and American Way,
the sponsor of the program, to secure clarification of the
matters which were troubling them. Norman Hoefler, the
used-car sales manager, testified that he overheard discus-
sions among salesmen in which they were critical of certain
aspects of the program and in which Terpevich expressed
his dislike of certain of its features . In addition , there is
evidence that salesmen made inquiries of Hoefler and
Lewis Rancilio, the new-car sales manager , regarding the
mechanics of the program and the compensation the
salesmen were entitled to thereunder, but that the
managers' responses revealed that they, too, were unin-
formed . Although it appears that ultimately many sales-
men increased their insurance earnings under the new
program , the merits of this program as compared with the
old plan are concededly not in issue.
In the meantime , the Respondent arranged with Ameri-
can Way President Thomas Warmus to conduct a series of
five meetings with the Respondent 's salesmen for the
purpose of explaining the operation of its program, the
underlying incentive system of compensation , the substan-
tive terms of the insurance offered , and the technique of
selling this insurance . Two or three meetings were held
before October 25 where Warmus lectured on some of
these subjects , including the method of determining the
salesmen's compensation under the incentive point system.
r However, the salesmen are given the option of being paid in cash at an
arbitrarily deflated rate.
The findings concerning this meeting are based on a composite of the
record testimony which I find reflect what probably transpired there.
Terpevich testified that he did not attend these sessions
because of illness.
On October 25,8 Warmus conducted the next meeting on
the Respondent's premises which the new- and used-car
salesmen, the sales managers, and Roland Rinke, the
Respondent's president, attended. Terpevich, however, was
about a half-hour late. Before Terpevich's arrival, Warmus
began to discuss various aspects of the program and the
technique of selling his company's insurance. During his
discourse, questions were invited from the floor, which
were answered by Warmus. Among the questions asked
was one by Raymond Fuhrman, a new-car salesman, who
inquired about the legality of selling American Way's
insurance in Michigan.9 It further appears that several
salesmen also posed questions relating to the incentive pay
plan.
As the meeting progressed, Terpevich entered. It was not
long before he questioned Warmus about the fairness of
the incentive plan for paying the salesmen for their
insurance sales and referred to his experience whereby he
assertedly received $7 less commissions under the new plan
than he would have earned under the former fixed
percentage plan. In response, Warmus proceeded to clarify
the functioning of the incentive system and its objective to
motivate the salesmen in selling the insurance, noting that
the salesmen had actually benefited from the institution of
this program. Warmus also commented that in the 2
months that the new program was in effect Terpevich
earned more, in totality, than he would have made under
the old plan. Not satisfied with Warmus' explanation,
Terpevich persisted in finding fault with the incentive
system and declared his inability to understand why he
should be penalized if he did not sell the insurance to all
potential customers. This led to a heated and emotional
exchange between Terpevich and Warmus in which
Terpevich pointed his finger at Warmus as if to emphasize
his remarks. When Terpevich alluded to another sales-
man's complaint concerning his reduced compensation
under the new program, Warmus replied that since that
salesman did not complain why should Terpevich. The
upshot of the Terpevich-Warmus argument was Warmus'
announcement that the meeting was no longer construc-
tive; that he had no intention of continuing his argument
with Terpevich; and that if the American Way program
was not wanted, he would withdraw it. On that note, the
meeting abruptly ended with Warmus, who was visibly
angered by the developments, walking out. Warmus
testified that subsequently four or five salesmen ap-
proached him and apologized for the turn the meeting had
taken.
Rinke, who was distressed that the meeting had broken
up under the circumstances it did, told the salesmen that he
was determined to retain the new program, which he
considered was the best one he had ever had and was most
lucrative for the Company, as well as the salesmen.
Terpevich informed Rinke that he, too, wanted the
program, but that he could not understand why Warmus
9 The next day, Fuhrman was given a 2-day disciplinary layoff. President
Rinke admitted that one reason for the layoff was Fuhrman 's inquiry
concerning the legality of the new insurance which he (Rorke) considered
was irrelevant.
RINKE PONTIAC CO. 241
was unable to furnish a satisfactory explanation of its
operation . Later, Rinke expressed his regrets to Warmus
for the outburst at the meeting and requested Warmus to
retain the Company's account, which he agreed to do.
2. Terpevich's discharge
Shortly after Terpevich reported for work the next day
(October 26) Used-Car Sales Manager Hoefler summoned
and accompanied Terpevich to President Rinke's offtce.'°
There, Rinke mentioned that he had already given New-
Car Salesmen Munaco and Fuhrman a 3-day disciplinary
layoff." Rinke then informed Terpevich that he had also
decided to terminate him. Rinke stated that he was
dissatisfied with Terpevich's attitude, job performance, and
other indicated shortcomings and that it was his inexcusa-
ble conduct at the October 25 meeting which brought
matters to a head. Furthermore, Rinke charged Terpevich
with disrupting the meeting and causing him embarrass-
ment and declared that he had enough personnel problems
in other departments that he did not need them in the sales
department . In addition, Rinke reviewed the other reasons
prompting his discharge decision , which were outlined in
the notice of disciplinary action given to Terpevich on
October 29. This led to a discussion concerning Terpe-
vich's tardiness ; the drop in his car sales; a stolen car
incident where he refused to sign a complaint against the
thief; his failure to obtain from a customer an odometer
affidavit; his alleged loss of interest in his job; Hoefler's
inability to control him; and his ownership of a horse
farm.12 Alluding to his long service with the Respondent
and the fact that he had been frequently consulted by
management with respect to business matters, Terpevich
tried to persuade Rinke to change his mind and retain him
but to no avail.
On October 29, the Monday following his termination,
Terpevich went to the Respondent's establishment to pick
up his personal belongings and paycheck. While there,
General Manager Joe Rinke handed him a notice of
disciplinary action which noted October 25 as the "Date of
Violation." Under the subject of "Reason for Discipline,"
the following items were checked: Tardiness (with "Late
Every Day of Wk. of Oct. 22nd" inserted), Misconduct,
and Unsatisfactory Performance. In the paragraph entitled
"Other Just Cause," the following was written in:
10 The findings concerning the discharge interview are based on credited
portions of the testimony of Roland Rinke, Hoefler, and Terpevich.
However , the narration does not necessarily reflect the precise order the
subjects were discussed.
ii Fuhrman's layoff was actually for 2 days . The notice of disciplinary
action given to him states, among other reasons for the layoff, "Poor
Conduct At Sales Meeting-Argumentative Remarks ." Rinke testified that
this reason referred to Fuhrman 's questioning the legality of the new
insurance program at the October 25 meeting which he (Rorke) considered
was irrelevant.
12 In view of the fact that it is undisputed that Terpevich's conduct at the
October 25 meeting precipitated his discharge and was at least one factor
causing it, it is unnecessary to determine whether and to what extent the
other asserted reasons contributed to the discharge decision . As indicated in
my concluding findings , infra, such a determination would not affect my
ultimate conclusion . However, it is observed that the additional reasons are
not entirely beyond suspicion . Significantly , at no time was Terpevich, the
Respondent's top producer, ever warned or threatened with discharge or
even discipline if his performance or other shortcomings did not improve.
Indeed , the only thing the Respondent did with respect to his tardiness,
Employee failed to have an Odometer Statement signed
and completed on sale of P9110 and 71 trade taken in
on this deal.
Poor conduct at sales meeting . Came in one hour late
and wanted to argue with representative of American
Way Ins. (Thom Warmus) about program. Completely
disorganized meeting.
Under the subject of "Remarks," this was written: "U/C
MGR [used-car manager ] and DLR [dealer] felt employee
has lost interest in job-Has a horse farm. Sales off 49
units in 9 months."
B. Concluding Findings
The General Counsel contends that the evidence
establishes that Terpevich's participation in the October 25
meeting was a protected concerted activity and that his
discharge for this reason violated Section 8(a)(l) of the
Act. Denying that the discharge was unlawful, the
Respondent argues that Terpevich's activity was not
concerted, but rather was an unprotected individual
complaint or gripe; that his action at that meeting was not
prompted by a desire or purpose to change or otherwise
affect conditions of employment; that his heated exchange
with American Way President Warmus, who had no
control over the salesmen's compensation, was misdirected
and therefore Terpevich made himself vulnerable to
discharge; that the Respondent was unaware that Terpe-
vich was acting in concert with his fellow salesmen; and,
finally that he misconducted himself at the meeting.
Section 7 of the Act guarantees to employees "the right
to . . . engage in . . . concerted activities for the purpose
of . . . mutual aid or protection .... " To terminate an
employee for exercising this right violates Section 8(a)(1) of
the Act.13 Even if the discharge is caused in part only by
the employee's protected concerted activities, it is similarly
unlawful, despite the existence of good grounds for
terminating him.14 Of course, under the plain language of
the Act, only employee concerted activities are protected.
To qualify as concerted activity, as one court observed, it
must be "engaged in with the object of initiating or
inducing or preparing for group action or . . . [have] some
which was not a recent development and was also prevalent among other
salesmen, was to alert Terpevich that he was late or to give him a pink slip.
Moreover , although Terpevich's car sales had declined in 1973 as compared
with 1972, most of the other salesmen similarly experienced a reduction in
their sales. As for his failure to secure from customers odometer affidavits in
one deal, other salesmen also overlooked securing them . In fact, Fuhrman
only received a 2-day layoff, mentioned above , for failing to obtain such
affidavits in connection with four deals and for other reasons. In any event,
these omissions are usually corrected before the deal is finally concluded.
With respect to the stolen car episode, which occurred more than 6 weeks
before the discharge , the car was recovered undamaged and the thief was
apprehended. It also appears that Terpevich's approach to the problem was
vindicated . Finally, Terpevich's ownership of a horse farm was not only
known to the Respondent for some time , but dated back to a time before he
entered the Respondent's employ.
i3 N.LR.B. v. Washington Alununum Co., 370 U.S. 9, 16-17 (1962).
i4 N.LR.B. v. West Side Carpet Cleaning Co., 329 F.2d 758,761 (C.A. 6,
1964); N.LR.B. v. Adam Loos Boiler Works Co., 435 F.2d 707 (C.A. 6,
1970).
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation to group action in the interest of the employees." 15
The same court also pointed out that "preliminary
discussions are [not ] disqualified as concerted activities
merely because they have not resulted in organized action
or in positive steps toward presenting demands." 16 On the
other hand, "in some circumstances entirely individual
action or speech is not concerted activity" and may
amount to no more than an unprotected personal gripe or
complaint.17
It is clear that Terpevich's criticism of the new incentive
compensation plan and his involvement in a heated
argument with American Way President Warmus at the
October 25 meeting was, at least, a substantial cause of his
discharge and, indeed, precipitated it. The crucial question
thus to be decided is whether Terpevich's conduct at that
meeting constituted protected concerted activity. Applying
the foregoing well-settled principles, I find that it did and
that his discharge violated Section 8(axl) of the Act.
As indicated above, Terpevich's activity at the October
25 meeting was essentially a continuation of the group
discussions in which he and other salesmen participated
among themselves following the Respondent 's institution
of the new insurance program with its incentive pay
features . This was a natural reaction of the salesmen to
their lack of information and apprehensiveness concerning
the new program in an effort to learn about its operation
and whether they would earn more from the sales of
insurance under this plan than they did under the former
one. Certainly, these matters directly related to their
legitimate interests in terms and conditions of employment
and their discussions, as well as inquiries they made of the
car sales managers, regarding such matters constituted a
form of protected concerted activity in their embryonic
stage , even though no immediate change in the new
program was demanded or contemplated . 18 Therefore,
when Terpevich at the October 25 meeting challenged the
fairness of the incentive insurance pay plan and soon
became embroiled in a sharp dispute with Warmus who, as
the sponsor of the plan, attempted to justify it, Terpevich
was clearly exercising his right to present objections to an
important aspect of the new program which was of mutual
concern to all the salesmen . I find that Terpevich 's action
was a concerted activity and not simply an unprotected
personal gripe or complaint , as the Respondent insists.19
The fact that he supported his position by calling attention
to his own loss of $7 under the new plan which he would
have earned under the old plan does not negate the
concerted character of his activity.20 Indeed, the concerted
quality of Terpevich's conduct is demonstrated, not only
is Mushroom Transportation Company, Inc. v . N.LRB., 330 F .2d 683,
685 (C.A. 3, 1964); see also Signal Oil and Gas Company v. N.LRB., 390
F.2d 338, 342 (C .A. 9, 1968); Hugh H. Wilson Corporation v. N.LR .B., 414
F.2d 1345 , 1354 (C .A. 3, 1969).
16 Mushroom Transportation, supra 685.
17 Signal Oil, supra, 342; see also Hugh H. Wilson Corporation, supra,
1348.
18 Washington Aluminum, supra, 14; Hugh H. Wilson Corporation , supra,
1350, fn. 9.
19 An inference of concerted activity is not precluded by the fact that the
meeting was called by management to discuss the operation of the program
and the technique of selling the offered insurance and to air employee
questions. Hugh H Wilson Corporation, supra, 1330.
5° See N.LRB. v. Interboro Contractors, Inc., 388 F .2d 495 ,499 (C.A. 2,
1%7), where the court observed that "[e]ven if it were true that ... [the
by the fact that he, argued in terms of the adverse effects
the incentive pay system had on the salesmen's earnings
generally, but he specifically referred to another salesman's
loss of earnings under the program, but Warmus refused to
listen. Moreover, it appears that Terpevich was not alone
in raising questions about the pay plan at this meeting.
Salesman Fuhrman also challenged its legality. In any
event, it may be reasonably assumed that, in speaking
against the incentive pay plan, Terpevich was simultane-
ously seeking to muster support for his views from the
salesmen attending the meeting. As was observed by the
Fourth Circuit Court of Appeals,21 "The activity of a single
employee in enlisting the support of his fellow employees
for their mutual.aid and protection is as much 'concerted
activity' as is ordinary group activity. The one seldom
exists without the other." In sum, I find, that Terpevich's
activity definitely bore "some relation to group action in
the interest of the employees," 22 entitling him to the
protection of the Act.
The Respondent, nevertheless, maintains that Terpe-
vich's activity was not concerted since there was no
evidence of a purpose to change the method of insurance
sales compensation. I find this contention unpersuasive.
While Terpevich indicated that he liked the program, there
could be no doubt that implicit in his criticism of the
incentive pay plan was at least a demand for its
modification.23 At any rate, concerted activity for mutual
aid and protection does not lose its character because the
employees had not yet proposed changes 24
Equally untenable is the Respondent's contention that,
as Terpevich's complaint was directed to American Way
President Warmus who lacked the power to make changes
in conditions of employment, Terpevich's activity was not
protected and he was therefore vulnerable to discharge.
The short answer is that American Way was the promoter
of the program in question; it had contracted with the
Respondent for its institution at the Respondent's automo-
bile agency; and the Respondent had arranged with
American Way to conduct a series of meetings with the
salesmen to explain the operation of the plan, the
technique of selling its insurance , and to answer questions
regarding these subjects. In this context, Terpevich at the
October 25 meeting voiced his criticism of the incentive
pay plan to Warmus in the presence of Rinke, the
Respondent's president . I am unable to find anything in
Terpevich's conduct in addressing his remarks to Warmus
which rendered him subject to discharge.25 Nor am I able
to perceive anything in Terpevich's heated exchange with
Warmus which was so indefensible, intolerable, or unrea-
employee) was acting for his personal benefit , it is doubtful that a selfish
motive negates the protection that the Act normally gives to Section 7
rights."
21 Owens-Corning Fiberglas Corporation v. N.LRB., 407 F.2d 1357, 1365
(C.A. 4,1%9); see also Hugh H. Wilson Corporation, supra, 1557.
ss Mushroom Transportation, supra, 685.
23 It is noted, however, that in its motion for summary judgment filed
before the hearing, the Respondent contended that , if Terpevich engaged in
concerted activity , its only purpose was to force the Respondent to reinstate
its former illegal plan.
24 N.LR.B. v. Washington Aluminum Co., 370 U.S. 9, 14 (1%2); Hugh H.
Wilson Corporation v. N.LR.B., 414 F.2d 1345, 1350, fn. 9 (C.A. 3 , 1969).
75 National Shirt Shops of Delaware, Inc., 123 NLRB 1213 (1959), cited
by the Respondent, absolutely has no bearing on the situation involved in
the case at bar.
RINKE PONTIAC CO.
sonably disruptive of order or discipline as to warrant
depriving Terpevich of statutory protection for his concert-
ed activity.26
Lastly, the Respondent seeks to be relieved of liability on
the ground that it was unaware that Terpevich was
engaged in concerted activity. I find this defense also to be
lacking in merit . It is sufficient that the Respondent was
familiar with the pertinent facts recited above on which I
have found the existence of concerted activity. In these
circumstances , the Respondent 's mistaken belief that
Terpevich's conduct only amounted to' personal griping
cannot nullify Terpevich's rights and justify his dis-
charge.27
Accordingly, I conclude that, as Terpevich was engaged
in concerted activity for mutual aid and protection, his
discharge was violative of Section 8(a)(1) of the Act.28
III. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and like and related conduct and that it take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that the Respondent unlawfully
discharged employee Terpevich because of his protected
concerted activity. To remedy this unfair labor practice, it
is recommended that the Respondent offer Terpevich
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 or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered by reason of his unlawful
discharge by payment to him of a sum of money equal to
that which he normally would have earned from the date of
his discharge to the date of the offer of reinstatement, less
his net earnings during the said period . Backpay shall be
computed with interest on a quarterly basis in the manner
prescribed by the Board in F. W Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). To facilitate the computation, as well as
to clarify the named employee 's right to reinstatement, the
Respondent shall make available to the Board, upon
request, payroll and other records necessary and appropri-
ate for such purposes . The posting of a notice is also
recommended.
Upon the basis of the foregoing fmdings of fact and
upon the entire record in the case , I make the following:
29 Hagopian & Sons, Inc. v . N.LKB., 395 F.2d 947, 952-953 (C.A. 6,
1968); Hugh H. Wilson, supra, 1355-56 ; Washington Aluminum, supra, 17.
27 Cusano v. N.LR. B., 190 F.2d 898 , 902-903 (C.A. 3,195 1).
29 N.L . R.B. v. Jamestown Veneer & Plywood Corp, 194 F.2d 192 (C.A. 2,
1952); N . L.R.B. v . Office Towel Supply Co, Inc, 201 F.2d 838 (C.A. 2,
1953); Southwest Latex Corporation v. N.LR. B., 426 F .2d 50 (C.A. 5, 1970);
and N.L.R.B. v. Buddies Supermarkets, Inc., 481 F .2d 714 (C.A. 5, 1973),
relied on by the Respondent for a contrary result , are factually distinguisha-
ble. In Jamestown, the court held that four employees, who were provoked
by the shortness of a notice of layoff and left the plant early for that reason,
were not engaged in protected concerted activity. In Office Towel, the court
held that an employee's remark that this was "a hell of a place to work" was
CONCLUSIONS OF LAW
243
1. The Respondent is an employer engaged in commer-
ce within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Stephen Terpevich for engaging in
protected concerted activities for mutual aid and protec-
tion, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER29
The Respondent, Rinke Pontiac Co., Warren, Michigan,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise disciplining employees for
engaging in protected concerted activities for mutual aid
and protection with respect to wages, hours, or other terms
and conditions of employment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Stephen Terpevich immediate and full rein-
statementtophisfformer job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of his unlawful discharge, in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon 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 and useful in analyzing the amount of backpay
due and the right to reinstatement and employment under
the terms of this recommended Order.
mere griping and not a form of concerted activity whose existence was
known to the company and her discharge was therefore pernussible. In
Southwest, the court found that the discharge was for improper performance
of duties and griping and not for unknown concerted activities. And in
Buddies, the court similarly held that the discharge was for individual
griping and not for concerted activities.
29 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.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its Pontiac Automobile Agency in Warren,
Michigan , the attached notice marked "Appendix A."30
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by the
Respondent 's authorized representative , shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places , where notices to employees are
customarily posted . Reasonable steps shall be taken to
insure that said notices are not altered , defaced , or covered
by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
30 In the event that the Board 's 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
tht National Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discipline
employees for engaging in protected concerted activi-
ties for mutual aid or protection with respect to wages,
hours, or other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce employees in the exercise of
their right to self-organization , to form, join , or assist
labor organizations , to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized by Section
8(a)(3) of the Act.
WE WILL offer Stephen Terpevich 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 or other rights and
privileges, and make him whole for any loss of earnings
suffered by reason of his unlawful discharge.
RINKE PONTIAC CO.