N.L.R.B. v. Webb Ford, Inc.

• Decision Date: 12 November 1982
• Docket Number: No. 81-3022,81-3022
• Citation: 689 F.2d 733
• Parties: 111 L.R.R.M. (BNA) 2555, 95 Lab.Cas. P 13,797 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEBB FORD, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 733

689 F.2d 733

111 L.R.R.M. (BNA) 2555, 95 Lab.Cas. P 13,797

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEBB FORD, INC., Respondent.

No. 81-3022.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 1982.

Decided Sept. 27, 1982.

Rehearing and Rehearing En Banc Denied Nov. 12, 1982.

Mendelssohn McLean, Elliott Moore-N.L.R.B., Washington, D. C., for petitioner.

Charles E. Murphy, Edward C. Jepson, Jr., Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for respondent.

Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and FOREMAN, ^* Chief District Judge.

PELL, Circuit Judge.

This case is before the court on the application of the Board for enforcement of its order against the Respondent Webb Ford, Inc. (Company), reported at 258 N.L.R.B. No. 62 (Sept. 30, 1981). The Board therein affirmed the findings and conclusions of the Administrative Law Judge (ALJ) and ruled that the Company had violated sections 8(a)(1) and 8(a)(3) of the Act by discharging employees for protected concerted and union activity; the Board further ruled that the Company had violated those sections by issuing warning notices to the discharged employees as part of a scheme to discharge them for pretextual reasons. The case presents three issues for review: (1) was the Company denied a fair hearing and did the ALJ and the Board fail to make independent findings of fact and conclusions of law; (2) does substantial evidence support the Board's finding that protected concerted and union activity was a motivating factor in the issuance of warnings and the decision to discharge the employees; and (3) does substantial evidence support the ALJ's finding that the Company's asserted legitimate reason for the discharges was pretextual. We turn first to a brief recapitulation of the facts as found by the ALJ.

I. FACTS

A. Background

The Company operates a retail automobile dealership in northwestern Indiana. The dealership is divided into departments, including new car prep, service, and front office departments. Local 142 of the Teamsters Union was certified as the bargaining agent for the Company's mechanical and body shop employees, including service department mechanics, on September 22, 1978, following an NLRB election. The Company and the Union signed a collective bargaining agreement on March 16, 1979, which by its terms was retroactive to January 1, 1979.

The agreement changed the method by which service department mechanics were paid. Prior to the signing of the agreement mechanics were paid $150 per week plus a percentage of the hourly rate for which customers or Ford were billed ¹ on work the mechanics had completed. Subsequent to the signing of the agreement, mechanics were paid at a fixed hourly rate for the greater of either the numbers of hours they were punched in on the job ("clocked hours") or the number of booked hours; in addition they received a bonus for each hour over forty they either clocked or booked in a given week.

The wage provisions of the new agreement gave rise to a number of problems with the wages of service department mechanics, including the computation of back pay during the retroactivity period, computation of vacation pay, payment of the bonus on overtime, and payment of the mechanics for work on discounted customer specials. Another problem which arose under the new contract was the creation of "unapplied time"-the amount by which clocked hours exceeded booked hours. Because the Company could not bill customers for such time, it lost profits to that extent, and was therefore concerned that such time be kept to a minimum.

B. The unfair labor practices

On March 30, 1979, several service department mechanics, including Jeffrey Goffe and Randall VanderWoude, were gathered in the front office near closing time, questioning the amount of the checks they had just received on the basis that they were improperly computed under the new contract provisions. Company Vice-President Jack Webb arrived upon the scene and questioned the employees about their presence in the office when several customers were waiting for their as yet unserviced cars. Goffe explained that the mechanics were seeking a proper computation of their back pay. Webb informed Goffe that he should not complain because his booked hours had never exceeded his clocked hours under the new agreement, and furthermore that Goffe was a very poor and slow worker. He then fired Goffe on the spot. Goffe had four recent warning letters in his file at the time of his discharge. ² The incident was resolved, however, on the intervention of the Union Business Agent Joe Kumstar, and the termination converted to a one-day suspension and warning.

As noted above, the Company was concerned that to the extent possible clocked hours not exceed booked hours. Between April and June the amount of excess clocked time in the service department increased by almost four hundred percent, despite an abundance of available work. The Company Business Manager Roberta Perri contacted the Union about this problem in early June, and was informed that an employee's failure to "book guarantee," i.e. to have his booked hours exceed or equal his clocked hours, could be the basis for a warning letter.

During the same three-month period, the service department mechanics, including Goffe and VanderWoude, continued to press for resolution of the various wage disputes which had arisen under the new contract. Company Service Manager George Biederman became disturbed by Goffe and VanderWoude's attitude and their persistent attempts to recover payments they claimed were due them. He threatened VanderWoude that he would be assigned strictly warranty work, ³ and ordered Ray Mason, the Assistant Service Manager, to assign Goffe and VanderWoude warranty work exclusively, because they were "two of the instigators for the Union."

During the relevant three-month period, Goffe received two additional warning letters for failure to book guarantee. VanderWoude received six warning letters during the period, three for failure to book guarantee. On June 29, he filed a complaint with the Board charging that the Company had discriminated against him in work assignments on the basis of his engaging in protected activity. On July 13, Perri, still concerned about the high amount of unapplied time, brought the records of the two worst employees to the attention of Jack Webb. Those employees were Goffe and VanderWoude. Webb then determined to fire the two employees, and did so by writing "Terminated" on the face of their final warning letters for failure to book guarantee. Both employees filed charges with the Board alleging that they had been discharged for their protected concerted and union activities.

II. DENIAL OF A FAIR HEARING

The Company's first contention is that it was denied a fair hearing because the ALJ was biased and hostile to the Company, and further that the ALJ and the Board failed to make independent findings of fact but rather merely adopted and incorporated into the ALJ's opinion portions of the General Counsel's brief. Our standard in determining whether an ALJ's display of bias or hostility requires setting aside his findings and conclusions and remanding the case for hearing before a new ALJ is an exacting one, and requires that the ALJ's conduct be so extreme that it deprives the hearing of that fairness and impartiality necessary to that fundamental fairness required by due process. A. O. Smith Corp. v. NLRB, 343 F.2d 103, 110 (7th Cir. 1965); Tele-Trip Co. v. NLRB, 340 F.2d 575, 581 (4th Cir. 1965). A reading of the transcript makes it clear that the ALJ was impatient and irritated at having to re-try the case. ⁴ While his repeated comments urging expedition and expressing exasperation reflect regrettable hostility on the part of the ALJ, and certain comments may be read as evidencing an overly solicitous attitude towards the General Counsel, we do not believe the record as a whole reveals such bias and partiality as to require rejection of his findings and conclusions in toto.

Nor do we find a sufficient denial of due process in the ALJ's adoption and incorporation of portions of the General Counsel's brief. While we do not as a general rule endorse such a practice, see Machlett Laboratories, Inc. v. Techny Industries, Inc., 665 F.2d 795, 797 (7th Cir. 1981), we have recognized that it is within the discretion of the finder of fact so to do, id.; Scheller-Globe Corp. v. Milsco Manufacturing Co., 636 F.2d 177, 178 (7th Cir. 1980). We find no such abuse of discretion in the instant case sufficient to warrant remand of the case on that basis alone.

III. SUBSTANTIAL EVIDENCE

The ALJ concluded that Goffe and VanderWoude were engaging in protected concerted activity when they persisted in pressing wage claims under the bargaining agreement, and that they were discharged for engaging in such protected concerted activity. The ALJ evaluated the discharges under the test formulated by the Board in Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enf'd 662 F.2d 899 (1st Cir. 1981), cert. denied, 454 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848. In Wright Line, the Board adopted the test established by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), for determining whether a teacher had been fired for permissible or unconstitutional reasons. The Board formulated its test as follows:

First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct.

Wright Line, 251 N.L.R.B. at 1089. This court has followed the Wright Line standard in evaluating dual-motive discharge cases. NLRB v. Town &...