Georgia Auto Pawn, (2017)

Docket Number:10-CA-132943
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Georgia Auto Pawn and Cynthia Johnson. Cases 10–

CA–132943 and 10–CA–142161

February 8, 2017

DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On October 21, 2015, Administrative Law Judge William N. Cates issued the attached decision. The Charging Party filed exceptions and a supporting brief, the Respondent filed an answering brief, and the Charging Party filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3

1 There are no exceptions to the judge’s finding that the Respondent violated Sec. 8(a)(1) by maintaining certain overly broad rules and policies.

2 The Charging Party 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 evidence 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 examined the record and find no basis for reversing the findings.

The Board adopts the judge’s findings that both the disciplinary warning and discharge of Cynthia Johnson were lawful. With regard to the warning, Member Pearce and Member McFerran note, however, that one of the two stated reasons for the June 17, 2014 warning to Johnson, “failure to follow procedure,” referred to Johnson’s protected concerted activity of speaking to coworkers about pay increases, and that discipline for such conduct demonstrated animus. They nonetheless agree with the judge’s finding that Johnson would have been disciplined for the other stated reason in the warning: her insubordinate behavior towards Area Manager Samantha Murillo during their June 9, 2014 telephone conversation. With regard to the discharge, Member Pearce and Member McFerran do not rely on the judge’s finding that the General Counsel failed to prove that Johnson’s protected concerted activity was a motivating factor in her discharge. Instead, they agree with the judge’s alternative finding that, even assuming the General Counsel met his initial burden, the Respondent proved it would have discharged Johnson for her behavior during the meeting with Regional Manager Larry Smith on July 7, 2014. For these reasons, they adopt the judge’s findings that both Johnson’s disciplinary warning and her discharge were lawful.

Member Pearce and Member McFerran do not agree with Acting Chairman Miscimarra’s protected concerted activity analysis, which they note is not reflective of Board law.

Even if one assumes that Johnson engaged in protected concerted activity, Acting Chairman Miscimarra agrees with his colleagues that the Respondent lawfully disciplined Johnson for insubordination. Accord-

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Georgia Auto Pawn, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

Substitute the following for paragraph 2(c).

“(c) Within 14 days after service by the Region, post at its Atlanta, Georgia facilities copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by

ingly, he finds it unnecessary to reach or pass on the judge’s finding that Johnson’s conversations with coworkers about performance evaluations and pay increases constituted protected concerted activity. He disagrees, however, with Aroostook County Regional Ophthalmology Center, 317 NLRB 218 (1995), cited by the judge, in which the Board held that conversations about wages are inherently concerted. As he explained in Hoodview Vending Co., 362 NLRB No. 81, slip op. at 5–7 (2015) (the former Member Miscimarra, dissenting), the notion that conversations about certain subjects are inherently concerted cannot be reconciled with Meyers Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988), in which the Board required that a conversation have an object of group action in order to qualify as concerted activity. Meyers II distinguishes between conversations that look toward group action, which are concerted, and mere griping, which is not. In Acting Chairman Miscimarra’s view, to deem a conversation inherently concerted based solely on its subject matter erases this distinction and thus contravenes Meyers II. In addition, the courts of appeals have uniformly rejected the theory of inherently concerted activity; see Trayco of South Carolina, Inc. v. NLRB, 927 F.2d 597 (4th Cir. 1991), and Aroostook County Regional Ophthalmology Center v. NLRB, 81

F.3d 209 (D.C. Cir. 1996), and the Court of Appeals for the District of Columbia Circuit has criticized the theory as “nonsensical,” “limitless,” and having “no good support in the law,” Aroostook County, 81 F.3d at 214. See Hoodview Vending, 362 NLRB No. 81, slip op. at 5–6 (the former Member Miscimarra, dissenting).

3 We will modify the recommended Order to correct the date of the contingent notice-mailing remedy.

4 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 Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

any other material. If the Respondent has gone out of business or closed a facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 17, 2014.”

Dated, Washington, D.C. February 8, 2017

______________________________________

Philip A. Miscimarra, Acting Chairman

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

Sally R. Cline, Esq., for the Government.1 Jonathan J. Spitz, Esq., for the Company.2 Cynthia Johnson, Pro Se3

DECISION

STATEMENT OF THE CASE

WILLIAM NELSON CATES, Administrative Law Judge. This case involves the Company’s issuing the Charging Party a disciplinary warning on June 17, 2014,4 and discharging her on July 7, and, its promulgating and maintaining, since June 18, 2012, alleged unlawful rules in its employee handbook restricting employees’: social media usage; oral and electronic communication; and, solicitation on company property. It is also alleged the Company, by Area Manager Murillo, during a telephone conversation on July 9 prohibited employees from discussing wages. The cases originate from charges filed by Johnson on July 17 (10–CA–132943) and December 3 (10–CA– 142161). The prosecution of the cases was formalized on March 4, 2015, when the Regional Director for Region 10 of the National Labor Relations Board (the Board), acting in the name of the Board’s General Counsel, issued an Order consolidating cases, consolidated complaint and notice of hearing (complaint) against the Company. I heard the cases in trial in Atlanta, Georgia, on July 9, 2015.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1 I shall refer to counsel for General Counsel as counsel for the Government and the General Counsel as the Government.

2 I shall refer to counsel for the Respondent as counsel for the Company and shall refer to the Respondent as the Company.

3 I shall refer to the Charging Party as the Charging Party or Johnson.

4 All dates are 2014 unless otherwise indicated.

The Company in its answer to the complaint, and at trial, denies having violated the Act in any manner alleged in the complaint.

The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. The parties entered into a one page written stipulation of facts which was received into the record as a joint exhibit. The Government called one witness and the Company called two witnesses. I carefully observed the demeanor of the three witnesses as they testified and I rely on those observations here. I have studied the whole record, and, based on the detailed findings and analysis below, I conclude and find the Company violated the Act only as indicated.

FINDINGS OF FACT

I. JURISDICTION AND SUPERVISORY AND/OR AGENCY STATUS

The Company, which is a corporation with a principal office and place of business located in Atlanta, Georgia, has been, and continues to be, engaged in the business of automobile title pawn lending. In the past 12 months ending July 31, a representative period, the Company derived gross revenues in excess of $500,000 and purchased...

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