Jim Causley Pontiac, Div. of Jim Causley, Inc. v. N.L.R.B.

• Decision Date: 23 April 1980
• Docket Number: No. 77-1737,77-1737
• Citation: 620 F.2d 122
• Parties: 104 L.R.R.M. (BNA) 2190, 88 Lab.Cas. P 12,027, 1980 O.S.H.D. (CCH) P 24,404 JIM CAUSLEY PONTIAC, Division Jim Causley, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 122

620 F.2d 122

104 L.R.R.M. (BNA) 2190, 88 Lab.Cas. P 12,027,

1980 O.S.H.D. (CCH) P 24,404

JIM CAUSLEY PONTIAC, Division Jim Causley, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-1737.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 30, 1980.

Decided April 23, 1980.

Harry A. Carson, Thomas E. Reiss, McClintock, Donovan, Carson & Roach, Detroit, Mich., for petitioner.

Elliott Moore, John H. Ferguson, Deputy Associate Gen. Counsel, Peter Winkler, N. L. R. B., Washington, D. C., Bernard Gottfried, Director, Region 7, N. L. R. B., Detroit, Mich., for respondent.

Before WEICK, BROWN and KENNEDY, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Petitioner Causley Pontiac appeals a decision and order of the National Labor Relations Board holding that Causley Pontiac committed an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158, by laying off its employee John Wittbrodt on December 7, 1976 because he had filed a complaint with the Michigan Department of Public Health under Michigan's Occupational Safety and Health Act (MiOSHA). ¹

Section 8(a)(1) of the National Labor Relations Act provides that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. ² One of the rights afforded employees under Section 7 of the National Labor Relations Act is the right to engage in concerted activities for mutual aid and protection. ³ The Board found that before sending the initial letter of complaint Wittbrodt had obtained permission from one of his co-workers to use his name and that Wittbrodt was therefore engaged in protected concerted activity in making the complaint. It also found that Wittbrodt was laid off because he made the complaint under MiOSHA.

The issue before this Court is whether the Board's decision is supported by substantial evidence on the record as a whole, including the body of evidence opposed to the Board's view. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 487-491, 71 S.Ct. 456, 463-466, 95 L.Ed. 456 (1951). This standard of review does not allow the reviewing court to set aside the Board's choice between two conflicting views of the evidence if it is supported by substantial evidence, even though the court might have reached a different conclusion if the matter had been before it de novo. Universal Camera Corp. v. N. L. R. B., supra; N. L. R. B. v. Cavalier Olds, Inc., 421 F.2d 1234 (6th Cir. 1970).

With that standard in mind we review the facts in this case.

The record in this case discloses that Wittbrodt began working for Causley Pontiac on May 5, 1976 as a painter of automobiles, doing the majority of Causley's warranty painting. Wittbrodt testified that he complained to Bob Strickroot, the supervisor assigned to the sales-service building, about excessive paint fumes in his work area and about the dangerous proximity of the paint fumes to the pilot lights of gas heaters nearby. Bertram Strickroot, Wittbrodt's immediate supervisor, testified that Wittbrodt complained to him about the volume of the telephone buzzer at his work location in or around October, 1976.

Leo Chiotti, the other employee in Wittbrodt's work area, testified that he complained to five management employees, including Mr. Causley, about excessive paint fumes in the area and suggested that an exhaust fan be installed. Wittbrodt's co-worker Chiotti testified that Wittbrodt showed him the original letter of complaint and asked permission to use Chiotti's name and that permission was granted. The letter regarding the conditions of Wittbrodt's workplace resulted in the filing of a formal complaint under MiOSHA on October 25, 1976. ⁴ Chiotti was transferred from that work area during the month of November, 1976, prior to the arrival of the MiOSHA inspector.

Two other painters were temporarily moved to Wittbrodt's work area in the month of November, after the filing of Wittbrodt's complaint, but prior to the arrival of the MiOSHA inspector. One of these employees testified that he complained to management about the excessive paint fumes and that the employees discussed the matter between themselves.

It is not disputed that on December 7, 1976, Gerard Noronha, a Health Engineer employed under MiOSHA, made an unannounced visit to Causley Pontiac as a result of the complaint by Wittbrodt. Noronha arrived at about 8:30 A.M. on that date. It is also not disputed that Wittbrodt was fired on that same morning. Gerard Noronha did not disclose the identity of the complainant to Causley Pontiac.

The Board's finding that Wittbrodt was engaging in protected activity under Section 7 of the Act in making the complaints to management and under MiOSHA was based on two rationales. First, the Board found that the "seed of ultimate group action had been planted" when Wittbrodt showed his October 12 complaint letter to co-worker Leo Chiotti and requested the authority to use Chiotti's name. Second, the Board ruled that concerted activity was present in this case under the doctrine announced in Alleluia Cushion Co., 221 N.L.R.B. 999 (No. 162, 1975), in which the NLRB held that when an employee seeks to enforce occupational safety statutes, designed to benefit all employees, it will imply consent by the other employees and concerted action in the absence of any evidence that fellow employees disavow such representation.

Since review of the whole record clearly indicates that there was substantial evidence to support the finding that the actions of Chiotti and Wittbrodt amounted to protected concerted activity within the meaning of Section 7 of the Act, we need not rely on the Alleluia Cushion doctrine to support that finding. This Circuit has ruled that concert of action is present if, from all of the facts and circumstances in the case, a reasonable inference can be drawn that the employees in question considered that they had a grievance and decided, among themselves, that they would take it up with management. The fact that the employees do not formally choose a spokesman and do not go together to see management does not negate concert of action. N.L.R.B. v. Guernsey-Muskingum Electronic Co-op., Inc., 285 F.2d 8, 12 (6th Cir. 1960); see also, ARO, Inc. v. N.L.R.B., 596 F.2d 713 (6th Cir. 1979). Wittbrodt's letter of complaint was part of a concert of action between him and Chiotti. At the time he made the complaint under MiOSHA only two employees, he and Chiotti, were affected by the working conditions in question. Wittbrodt was aware of Chiotti's complaints of health problems resulting from the working conditions and of Chiotti's own complaints to management on the matter. Thus, when Wittbrodt obtained permission to use Chiotti's name, the two employees were essentially agreeing to take up a common grievance with the proper authorities. Such action is well within the definition of concerted activity set forth in Guernsey-Muskingum.

Petitioner argues that the record does not support Chiotti's testimony of the agreement that his name be used in conjunction with the complaint. It is true that neither the letter of complaint nor the MiOSHA complaint form submitted by the Wittbrodt were signed by Chiotti. However, both documents make several references to Chiotti. For example, Wittbrodt's original complaint letter makes the following references to Chiotti and to their joint efforts:

Directly across the aisle from me is a used car mechanic. He and I together have been talking to the service manager of the body shop with no results. The used car mechanic talked to Mr. Causley several days ago about the situation . . . . The reason that I am writing you this letter is because we have tried to get results from the service manager and Mr. Causley himself with no satisfaction. . . . When Mr. Causley hears about my writing this letter to you, he will fire me for doing so, but I would like to see things corrected for the used car mechanic and also for myself.

The MiOSHA complaint form similarly refers to Chiotti by title and work location as being affected by the conditions, as well as identifying him by his first name and his title as being under a doctor's care due to the conditions. The letter and the complaint form support, rather than refute, Chiotti's testimony regarding the agreement to use his name.

Petitioner's second argument is that the finding that Causley Pontiac had knowledge that Wittbrodt was engaged in the concerted activity is not supported by substantial evidence. This argument focuses first on Causley Pontiac's alleged lack of knowledge that Wittbrodt filed the complaint. After a careful review of the record, however, we must conclude that the Board's determination in this matter was supported by substantial evidence. The record indicates that on the morning of the inspection Mr. Causley was given a document which, although it did not disclose the identity of the complainant, did identify the two nonmanagement positions that were affected by the complaints. It would be reasonable to infer that Mr. Causley would conclude that one or both of those employees must have filed the complaint. Further, the complaint form that was given to Causley referred not only to the employees' discomfort in breathing the paint fumes, but also the proximity of gas heaters to the fumes and the loudness of a telephone buzzer in the area. The only references in the record to complaints to management on the second and third items are to complaints made by Wittbrodt. Finally, the sequence of events in this case also supports the conclusion that Causley knew of Wittbrodt's involvement in the filing of the MiOSHA complaint. This Circuit has ruled that the proximity in time between recent protected activity and measures taken against the employee engaged in the activity lend support to the inference...